Ross v. Simon — 28 N.Y. St. Rep. 147

Majority

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John B. Ross, App’lt, v. John Simon, Impleaded, etc., Resp’t.

(City Court of New York, General Term,

Filed December 24, 1889.)

Headnote

Mechanic’s liens—Pleading—Laws 1885, chap. 842.

The notice of lien filed stated that the name of “ the owner of the leasehold estate against whose interest a lien is claimed is Schmitt, and the owner of the fee of said land is ” the defendant, Simon. The complaint referred to the notice and alleged that this defendant knew of the work and consented to it. There was no allegation that the work benefitted the premises, or that defendant directed the work, was obligated to make the repairs or was consulted about them. Neld, that the only claim made was against the interest of Schmitt, and that the mere allegation of consent by defendant was not, in the absence of any allegation of claim, sufficient to cons itute a cause of action against him on his property.

Appeal from a judgment rendered herein on November 14, 1889, by Me Adam, Ch. J., sustaining the demurrer and dismissing the complaint herein.

The complaint herein alleges as follows:

First. That the defendant, Simon, was, and is now, the owner of the premises No. 2007 First avenue.

Second. That said defendant, on April 28, 1888, leased said premises and house thereon to the defendant, Ignatz Schmitt, for twenty-one years, from May 1, 1888, and that said lease was duly recorded on April 13, 1888.

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Third. That defendant, Ignatz Schmitt, by assignment dated September 1, 1888, and recorded on the same day, assigned said lease to the defendant, Barbara Schmitt

Fourth. That defendant, Ignatz Schmitt, was, at the time hereinafter mentioned, the duly authorized agent of the defendant, Barbara Schmitt.

Fifth. That subsequent to the making of said lease, a contract was entered into between the defendants, Allen B. Muir and Barbara Schmitt, for furnishing materials and making certain alterations and repairs of the house on said premises, and for which said defendant, Barbara Schmitt, agreed to pay said defendant, Muir, the sum of $2,175.

Sixth. That the defendant, Muir, performed the conditions of said contract, and became entitled to receive a sum in excess of the contract price.

Seventh. That on or about September 17, 1888, the plaintiff herein entered into another contract with said defendant, Muir, to do certain other work and furnish other materials, on and for the house on said premises for the sum of $245.

Eighth. That in pursuance of said contract, plaintiff did the work and furnished the materials specified in the seventh para- . graph of the complaint.

Ninth. That the sum of $125 has been paid on account of said contract, leaving a balance due of $120.

Tenth. That the defendant, Simon, the owner, had full knowledge of the work, and consented to the same, and to the performance of the "labor, and the supplying of the materials by the plaintiff.

Eleventh. That a notice of" lien was filed on or about the 8th day of November, 1888.

Twelfth. That within ten days after the filing of said notice, a copy thereof was served upon the defendants, Simon and Barbara Schmitt.

Thirteenth. That the other defendants have certain rights and interests in the said premises, and plaintiff demands judgment that he be adjudged to have a lien on said premises for the sum of $120 and interest.

The defendant, Simon, the owner, appeared and demurred to the complaint, on the ground that it appears on the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action against him. On the hearing of the issue of law raised by the demurrer the judgment was rendered from which this appeal was taken.

James C. De La Mare, for app’lt; Stephen Philhin, for resp’t.

This action was commenced on or about the 16th day of September, 1889, to enforce a mechanics’ lien against the premises No. 2007 First avenue, notice filed November 8, 1888, owned by the defendant, Simon, under the mechanics’ lien law, chap. ■342. Haws of 1885. Section 1 of said act provides as follows:

“ Section 1. Any person * * * who shall hereafter perform any labor or services, or furnish any materials * * *

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in building, altering or repairing any house, building * * with the consent oí the owner, as hereinafter defined, * * * or his agent or any contractor, * * * or any other person contracting with such owner to erect, "x" "x" * as aforesaid, * * may * * * have a lien * * upon the lot and premises "x" * * upon which the same may stand, -x- -x * t0 the extent of the right, title and interest at that time existing of such owner, whether owner in fee or of a less estate, or whether a lessee for a term of years, 'x' * * or of the owner of any right, title or interest in such estate.”

Section 1 of the act above referred to was amended by chapter 316 of the Laws of 1888, which took effect on May it, 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 § 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 docs not appear that the premises of the defendant Simon were in any manner benefitted, 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, "x" * "x with the names 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. ETor 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 twelfth 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

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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 case 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, that 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. Supplt., 338 ; 25 N. Y. State Rep., 771.

In Otis v. Dodd, 90 N. Y, 336 , (1882), Dodd and Ross, 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 company 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 Chap. 489, Laws of 1873.

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 benefitted, 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.

Ehrlich, J., concurs.

Statutes and regulations cited

Lien Law p. 148