Ross v. Simon

of the Laws of 1888, which took effect on May 17, 1888. It does not appear from the complaint herein whether the work and materials claimed for were done and furnished before or after said amendment took effect. It is immaterial however, as the above amendment does not materially change the provisions of section 1 of the act first cited, or affect the question raised herein. Conceding all the facts stated in the complaint, it does not set forth any cause of action against the defendant Simon. It does not appear that the premises of the defendant Simon were in any manner benefited, or that the value thereof was increased, by the alterations and repairs alleged to have been done on the building, or that he ever took any part in, advised, or gave directions as to the method of construction of, the alterations or repairs, as in Otis v. Dodd, hereinafter cited. Section 4 of the act hereinbefore referred to provides for the filing of a notice of lien “containing the name * * * of the claimant, * * * with the name of the owner, lessee, * * * or person in possession of the premises against whose interest a lien is claimed.” Paragraph 11 of the complaint recites “that a copy of said lien is hereto annexed,” and therefore the notice of lien is made part and parcel of the complaint. The notice of lien filed herein recites as follows: “That the name of the owner of the leasehold estate against whose interest a lien is claimed is Ignatz Schmitt, and the owner of the fee of said land is John Simon.” There is no allegation in the complaint that any claim is made, or that any lien is claimed or asked for, against the interest of the defendant John Simon, the owner; but, on the contrary, a claim is made against, and a lien is claimed only against, the interest of Ignatz Schmitt, the lessee in the leasehold estate. Nor does it appear that the defendant Simon, the owner, ever took any part in the direction or in the making of the alterations or repairs, or was obligated to make such repairs, or that he was consulted in relation thereto. The mere allegation, in the tenth paragraph of the complaint, that the defendant Simon “consented to the same, and to the performance of the labor and the supplying of the materials by this plaintiff,” was not, in the absence of any allegation of claim in the complaint, sufficient to constitute a cause of action against the defendant Simon, the owner, or to make him personally liable, or his property liable, for such repairs; no claim having been made against him, or lien claimed upon his interest in the lands in the complaint. Simon, the owner, was the landlord; defendant Ignatz Schmitt was the tenant; and, in the absence of any express covenant to repair or make alterations on the part of Simon, the landlord, the tenant Ignatz Schmitt, and his assignee, being in possession as tenants, were legally bound to make all repairs. The tenant was in possession under the lease; and Simon, the landlord, had no right to interfere with, object to, or to stop the work. His refusing to consent thereto, or his objecting to the repairs, would have been of no avail, unless, possibly, he objected to the repairs, in ease his tenant was doing a great injury to his property. Had Simon, the landlord, in passing the premises, discovered that his tenant had men employed in painting the house on the premises, would he have had any right to interfere with the work ? And it cannot seriously be claimed that, in such case, had the tenant refused to pay the workmen employed by him under a contract to paint the house, the contractor could have or enforce a lien against the owners of the premises for the painting. Simon, the owner, did not become a party to the contract made by the lessee with the plaintiff; and only the title or interest of the lessee in the premises could be affected by the lien. The mere consent of the defendant Simon to the repairs and alterations made by his lessee did not obligate him, either legally or morally, to pay for the same, nor did it subject his interest in the premises to the lien. Jones v. Manning, 6 N. Y. Supp. 339 , (Gen. Term, Sup. Ct., Fifth Dept., June, 1889.) In Otis v. Dodd, 90 N. Y. 336 , (1882,) Dodd and Boss, the owners of the fee, leased certain real estate to the Union Portland Cement Company, for the term of seven years, with covenants of renewal. The com

panv covenanted with the lessors, at its own expense, to construct and complete upon the real estate some buildings and other improvements; and that such buildings and improvements should immediately attach to the freehold, and become part of the demised premises, and not to be removed during, or at the expiration of, the lease. The company contracted with the plaintiff to perform labor and furnish materials in the construction of the buildings. During the progress of the work, the lessors, the owners of the fee, came upon the premises, and advised about the location of the structures, and gave some directions as to the method of their construction. An action was brought to enforce the lien against the property, under chapter 379, Laws 1875. The lien was held good, on the ground that the work and materials were furnished with the consent of the owners, who came upon the premises, and advised and gave directions as to the method of construction of the buildings upon the lessors’ premises, which were to be benefited, and the value thereof increased, by the construction by the lessee, upon the lessors’ premises, of the buildings and other improvements, which, by the terms of the lease, were immediately to attach to the freehold, and become part of the demised premises, and were not to be removed, at the expiration of the lease, therefrom. Judgment affirmed, with costs. All concur.