Ross v. Simon

The notice thus contained a statement of the fact which, by-statute, gives a lien upon the interest of the owner, viz.: that the work was done with his consent, and such statement is sufficient notice to him and all others that the lien given by statute is claimed against his interest. It is not prescribed that the notice shall state in so many words that the lien is claimed against such persons, but that the names of the persons against whose interest, the lien is claimed shall be given. If, therefore, the names are given, and the facts subjecting their interests to the lien are stated, the statute is satisfied. The fact that it is expressly stated in the. plaintiff’s notice that “the name of the owner of the leasehold estate against whose interest a lien is claimed,” is not exclusive, and does not stop the lienor from claiming also a lien against the interest of the owner. The case of Moran v. Chase, 52 N. Y., 346 , is in point. That lien arose under the Kings and Queens county act of 1862, Sess. Laws, chap. 478, which required the notice tosíate “ the person against whom the claim is made, the owner of the building, and the situation of the building,” and the notice stated that “the name of the person against whom the claim is made, is S. B. Vreeland, and the said work and materials so furnished was by and at the -request of said S. B. Vreeland,” and that the owner was George K. Chase. It was held that a lien was acquired thereunder against Chase, the owner, notwithstanding the-statement in the notice that the claim was against Vreeland only. This case is to be distinguished from Jones v. Manning, 25 N. Y. State Rep., 771, cited by appellant, for in that case the decision is put upon the ground that there was nothing in the notice to indicate that the lienor was seeking to place a lien upon the interest of the party named. Here the notice fully apprizes all persons-of the intent to charge the interest of the defendant.

It remains to be considered whether the allegations of the complaint are sufficient as a statement of a cause of action against-Simon, the owner. The complaint sets forth in substance that the defendant, John Simon, was, and is, the owner of the premises-described in the complaint, being a lot of land in the city of New York ; that he leased the lot and the house thereon for the term of twenty-one years from May 1, 1888, to the defendant, Ignatz Schmitt, by instrument duly recorded; that Schmitt assigned the-lease to the defendant, Barbara Schmitt; that the defendant, Muir, contracted with her to do certain work, labor and services, and furnish materials in and about the erecting, altering or repairing of the house or building on the premises for the sum of $2,175; and so far completed the same as to become entitled to receive a sum largely in excess of plaintiff’s claim, who, under contract with Muir, did certain plastering and furnished materials for the said building for the sum of $245, upon which there is due $120 ; and that the defendant, John Simon, the owner of the fee of said premises, had full knowledge of the erecting, altering and repairing of said buildings, and consented to the same and to the

The averment is, I think, sufficient under the statute. It is not necessary to aver how, or under what circumstances, the consent of the owner was given, any more than it would be necessary to set out the particulars of a contract if the averment had been that the work was done under or pursuant to a contract with him. In other words, the evidence in support of the allegation of consent is not to be pleaded. What the liability, if any, of the owner may be found to be, upon the facts proved, is a wholly different question from that before us which is of pleading only.

Under the lien act of 1878, chap. 489, giving a lien upon the house and lot where the work is done and materials are furnished “ with the consent of the owner,” it was held that the simple consent of the owner is sufficient without proof of a contract by him for the improvements. Otis v. Dodd, 90 N. Y., 336 . In that case the lease with the owner contained a covenant for the erection of the buildings and improvements which were to become a part of the freehold and not to be removed at the expiration of the lease; and the court approves the doctrine in Nellis v. Bellinger, 6 Hun, 560 , that the statute gives a lien as well where the owner consents to the erection of a structure upon his land, as where he directly contracts for its construction, and the decision in Husted v. Mathes, 77 N. Y., 388 , where the owner simply knew of the improvements made by the husband upon her land and consented to them, and it was held that her simple consent authorized the lien.

Upon these authorities it is clear that the allegation of consent on the part of the owner is sufficient by way of pleading; we have not now "to deal with the question whether the facts to be proved will bring the case within the authorities holding the owner liable, whether the consent proved does or does not amount to an authorization of the work as stated in Ottiwell v. Muxlow, in this court, 24 N. Y. State Rep., 38.

The judgment of the general and special terms should be reversed and the demurrer overruled and judgment upon the demurrer in favor of plaintiff ordered, with costs, and if so adjudged by the city court, with leave to defendant to answer upon payment of costs.

Larremore,'Ch. J. andBiscHOFF, J., concur.