Hyperlawhypertext legal database W. J. Elliott Co. v. Tapscott 151 N.Y.S. 1006

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W. J. Elliott Co. v. Tapscott

151 N.Y.S. 1006 Court N.Y. App. Div. Decision date 1915-02-19 English

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p. 1006
W. J. ELLIOTT CO., Inc., v. TAPSCOTT et al.
(Supreme Court, Appellate Division, Second Department.
February 19, 1915.)

Headnote

1. Mechanics’ Liens (§ 271[1] ) — Consent of Owner — Pleading.
To base a statutory lien for work performed on consent or permission, the facts must be alleged in the complaint.
[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 494-513; Dec. Dig. § 271.*]
2. Mechanics’ Liens (§ 304*) — Work Performed by Permission — Deficiency Judgment.
A statutory lien for work performed merely on consent or permission does not justify a judgment for deficiency, as the owner of the property in such case is not a debtor.
[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 632-635; Dec. Dig. § 304.*]
3. Mechanics’ Liens (§ 281*) — Consent of Owner — Sufficiency of Evidence.
Consent or permission to perform work as a basis for a statutory lien is not made out by the statement of a witness that he saw the party to be charged on the premises.
[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 565-572; Dec. Dig. § 281.*]
Appeal from Nassau County Court.
Action by the W. J. Elliott Company, Incorporated, against Lillian E. Tapscott and E. Louise Tapscott. From a judgment for plaintiff, defendants appeal. Affirmed as to E. Louise Tapscott, and reversed as to Lillian E. Tapscott.
Argued before JENKS, P. J., and THOMAS, CARR, RICH, and PUTNAM, JJ.
Frederick W. Griffin, of New York City, for appellants.
Eugene L. Flanagan, of Brooklyn, for respondent.

[1-3] While the finding is justified that the husband acted as the agent of his wife, E. Louise Tapscott, it is not proven that he was the agent also of the other defendant, and the finding and judgment in that respect are erroneous. Although the finding and judgment as to both defendants proceed upon the theory that the work was done at the request of the defendants, it is urged in this court that the defendants are liable because they permitted the work to be done, thereby subjecting the property to the statutory lien. But the complaint proceeds on contract. But, to base a lien on consent or permission, the facts must be alleged in the complaint (Burkitt v. Harper, 79 N. Y. 273 ), inasmuch as the cause of action would not be upon contract; nor is the owner of the property in such case a debtor, nor may a judgment for deficiency be entered against her (Husted v. Mathes, 77 N. Y. 388 -390). The evidence of consent on the part of Lillian E. Tapscott is limited to the statement: “I also saw the other lady; but Mrs. Tapscott gave me the orders.” The witness probably meant to imply that he saw her on the premises. The evidence is quite insufficient.

p. 1007
The judgment as to E. Louise Tapscott should be affirmed, with costs; but as to Lillian E. Tapscott it is reversed, and a new trial ordered, costs to abide the fin'al award of costs.

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