New York Dyeing & Printing Establishment v. le Westenberg

Majority

p. 358

New York Dyeing and Printing Establishment, Resp’t, v. Jane A. le Westenberg et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 27, 1887.)

Headnote

Lease—Value op buildings ebected undeb—Lien.

In th3 absence of come specific provision in a lease on the subject, the effect of an agreement therein contained to pay the value of the buildings and improvements at the expiration of the term, is merely to render *he lessors, or their successors in interest, liable to a simple money judgment for the amount at which s ch value may be assessed. There is no lien upon the premises for the amount.

Appeal from special term judgment in action to recover value of building erected on leased premises.

Aaron J. Vanderpoel, for app’lts; Joseph H. Choate, for resp’t.

—For the reason given, and upon the authorities cited in the opinion of the court below, we are satisfied that the plaintiff was entitled to recover the value of the building and improvements which its assignor put upon the land of the defendants.

The decree goes too far, however, in adjudging that the plaintiff has a lien upon the premises for this amount.

The lease does not provide for any lien, and in the absence of some specific provision in that instrument on the subject, the effect of the, agreement therein contained to pay the value of the buildings and improvements at the expiration of the term is merely to render the lessors or their successors in interest liable to a simple money judgment for the amount at which such value shall be assessed. Under the circumstances we do not think the court possessed the power to direct the sale of this particular

p. 359

property, as in a mortgage foreclosure suit, on the theory that there was a specific lien which should thus be enforced. Of course these premises, like the other lands of the defendants, if they have any, will be subject to the lien of the money judgment, but that is all.

The judgment appealed from should be modified so as to provide only for the recovery of the amount fixed upon as the value of the building and improvements, omitting those portions which declare the existence of a lien and order a sale of the lot in question; and, as, thus modified, it should be affirmed without costs on this appeal.

Daniels and Brady, JJ., concur.