Chamberlin v. McCarthy — 36 N.Y. St. Rep. 61

Majority

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Lee Chamberlin, Resp’t, v. Charles McCarthy, Impl’d, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 18, 1891.)

Headnote

1. Mechanic’s lien—Injunction.

B. & P. leased buildings of M., then owner, and put in them boilers, etc., purchased of plaintiff. The latter filed a mechanic’s lien against the interest of B. & P. The lease and premises were abandoned by B. & P. In an action to foreclose the lien plaintiff obtained an injunction forbidding M., pending the action, to use the boilers which remained on the premises. Held, that the injunction could not be sustained.

2. Same.

Under the statute the lien is only upon the person’s interest in the land.

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If the boilers were removable by the tenant they were no part of the land; if they were part of the land the landlord had a right to re-enter and plaintiff could not abridge the owner’s use of his own land.

Appeal from injunction order granted in this action.

Action to foreclose a mechanic’s lien.

On the 20th day of March, 1889, the plaintiff, Lee Chamberlin, filed in the Eensselaer county clerk's office a notice of mechanic’s, lien on premises owned by the defendant, Charles McCarthy, located on Grand street in the city of Troy, N. Y., wherein he claimed a lien for alleged work, labor and services done and .performed and materials furnished by him in the alteration and repair of the house or houses erected upon said premises. Said work, labor and services were done and performed, and said materials were furnished at the request of William B. Brind and- H. S. Pashkian, lessees of said premises and tenants of the said defendant, Charles McCarthy. Said mechanic’s lien was for $577.37, and purports to be against the interest of the said tenants, William B. Brind and H. S. Pashkian, in said premises.

Before the commencement of this action the lessees abandoned and surrendered the premises, and the owner let the same to other •parties.

The injunction order in question restrains the defendant McCarthy and his tenants from using the materials put upon the premises, and attached to the freehold by plaintiff, until the fur"ther order of the court.

Thomas S. Fagan, for app’lt; Rufus M. Townsend, for resp’t.

We think this injunction should not stand. McCarthy owned the land, and leased it to Brind & Pashkian." They purchased of plaintiff certain boilers and steam fittings, and the like, and had them put in the buildings. For these purchases they owe. The plaintiff filed a mechanic’s lien against the interest of Brind & Pashkian in the premises, and he now brings this action to foreclose.

It appears that Brind & Pashkian abandoned and surrendered their lease; and McCarthy, as owner, took possession, and that his present tenants are using the boiler and fittings and the like. The plaintiff fears that these things will be injured by such use, and, therefore, obtained an injunction forbidding McCarthy to use them until the decision of the action.

The effect of the filing the notice of lien, assuming it to be valid, is to create a lien on the interest which Brind & Pashkian had in the premises.

Whether this boiler and these fittings became a part of the property of the owner, or whether they were such fixtures that Brind and Pashkian could remove them at the end of their term, we need not decide. We may assume that if the plaintiff had, by contract with McCarthy, put in these fixtures he would have had a lien on McCarthy’s interest. But a reference to chap. 342, Laws of 1885, § 1, will show that the lien is only on the interest in the land of the person for whom the work is done, either directly or through a contractor. The language is: “ Whether

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owner in fee, or of a less estate, or whether a lessee for a term of years, etc.”

How, while it may be that after the filing of the notice of the lien the lessee could not convey the lease-hold estate free from the lien, yet it is by no means clear that the landlord could not reenter for non-payment of rent.

However this may be, there is no propriety in preventing the owner of the fee from using the property which has thus been attached to his land. ■ If the tenants had lawfully removed these fixtures, then they would not have been affected by the notice of lien, because that is a lien on the interest in land. And if these fixtures are rightfully removable, then they are not part of the land.

On the other hand, if these became a part of the land (as plaintiff seems to claim under Ward v. Kilpatrick, 85 N. Y., 413 ), then McCarthy as the landlord is rightfully in possession and cannot properly be prevented from using his property. The plaintiff had no lien except on the lease-hold interest of Brind and. PashMan. Whether that has ceased or not is not shown. At any rate the mechanic’s lien cannot operate to increase the rights which the lessee had against the lessor.

The injunction order is reversed, with ten dollars costs and printing disbursements, and motion for injunction denied, with ten dollars costs.

Landon and Mayham, JJ., concur.