Ottiwell v. Muxlow — 24 N.Y. St. Rep. 38

Majority

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John D. Ottiwell, Resp’t, v. Jane B. Muxlow, App’lt, and Laurence A. Thole, Resp’t.

(New York Common Pleas,

General Term,

Filed June 3, 1889.)

Headnote

1. Mechanic’s lien—Landlord and tenant—Lien op tenant—Laws 1885, chap. 342, § 1.

A mechanic’s lien is given, under section 1, chapter 342, Laws of 1885, when the tenant, with the consent of the superior landlord, builds directly, or by contract, a structure upon the lot of ground, or repairs and improves the buildings erected thereon. The landlord consenting to the improvement of the land, it is, by the statute, subject to the lien.

2. Same—Consent op landlord or lessor to improvement by tenant— When may be inferred—Liability por improvement.

Snell consent of the lessor may be inferred and presumed, not only from her words, but from her acts. So that where the lessor had erected a building on the ground for the purposes of a skating rink, but had not finished it, further work being required to make it fit for the purposes intended, and then leased the premises for a term of years to an irresponsible tenant, who, under the active and controlling influence of the lessor’s husband, made contracts for completing the rink, paid no rent while the work went on, and subsequently, when the buildings were completed, yielded the control of them to the lessor and her husband, who were found in charge of the premises, taking in all the money and appropriating it to their own use, it was held that while there was no direct proof of any active consent to such improvements, on the lessor’s part, yet the whole course of her dealings with the property shows that the making of the contracts by the lessee with the mechanics was a mere device, whereby the lessor hoped to complete the buildings without expense to her, and that it was her intention that the buildings should be completed in that way, and these facts together with the evidence of her dealings with the former lessee, fully establishes consent to the making of the improvements and her liability for them.

3. Same—Admissibility op evidence.

Evidence of the dealings of the lessor with a former lessee of the same premises, was held admissible. Where a scheme of this kind is started, the proof of the owner’s complicity does not lie on the surface, but must be inferred from the way in which he dealt with the property; and the earlier transactions were properly admitted in evidence to throw light upon that question.

Appeal taken by defendant, Jane B. Muxlow, from a judgment of foreclosure and sale of certain real estate in the city of New York, in which she has a leasehold interest under mechanics’ liens in favor of the other two parties above-named.

The main question on this appeal is, whether the appellant, as superior landlord of the premises, is liable for the improvements and repairs made on them under contracts with her lessee. This depends on whether these improvements or repairs were made with appellant’s consent within the meaning of section 1 of chapter 342, 7.iaws lo8o. What that, word as there used, means, we think "-ell stated hv the learned judge'wlio tried the case, when l..-\ said, “ Conseiit implies a degree of superiority, at least the power of preventing; it implies net merely that a per

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son accedes to, but authorizes an act,” citing Crabbe’s Synomyms. Applying this rule, the learned judge who tried the case, we think very properly dismissed the complaint as to Jackson the owner of the fee, who was originally sued with Mrs. Muxlow the lessee; for there was no evidence that connected him with the work done; he was neither party or privy, nor did'he, in the sense above defined, give his consent to such improvements. Judged by the same rule, we think the evidence fully sustains the findings that the work was done, and materials furnished, in the course of the erection and completion of the “ Coliseum Rink,” with the consent of the appellant. There is little or no conflict in the evidence.

While it is true that the lease executed by Mrs. Muxlow to her lessee, Watkins, contains no provision that any improvements should be made on the buildings, and while there is no direct proof of any active consent on her part to such improvements, yet the whole course of her dealings with the property, the fact that the buildings on the property leased by her to Watkins were erected and intended to be used for a skating rink, yet were not complete; that further work was required to make them available for that purpose; that immediately upon taking the lease, Watkins proceeded with that work; that no rent was paid while the work was proceeding; that when the contractors stopped, her husband offered to pay for the completion of the work; that immediately upon its completion both Mrs. Muxlow and her husband are found in charge of the premises taking in all the money that was received and applying it to their own use, together with the fact that her* husband was. the controlling spirit who moved Watkins, with whom the mechanics made their contracts; that Watkins was a man of no pecuniary means, and was, as the learned justice regarded him, a mere dummy in the matter, I feel no hesitation in coming to the conclusion that the lease to Watkins and his contracts with the mechanics were a mere device., whereby the Muxlows hoped to complete the buildings without expense to themselves,'and that it was their intention that the buildings should be completed in the manner they were; and these facts, together with her dealings with the former lessee, fully establishes consent to the making of the improvements as they were made, and her liability for them.

The appellant objected to the introduction of any evidence of the former dealings. Where a scheme of this kind started, the proof of the owner’s complicity does not lie on the surface, but must be inferred from the way in which he dealt with the property, and the earlier transactions were properly admitted in evidence to throw light upon that

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question. I think no error was made on the trial of the case, and that the judgment should be affirmed, with costs.

Allen, J., concurs.