Cowen v. Paddock — 43 N.Y. St. Rep. 342

Majority

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Charles A. Cowen et al., App’lts, v. Margaret Paddock et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed December 31, 1891.)

Headnote

Mechanics’ lien—Consent of owner.

A non-resident owner of real estate made a contract for the sale thereof, which gave no right of possession. The purchaser entered without permission and began excavations. The owner on visiting the premises discovered this and ordered the work stopped, but subsequently it was continued and foundation walls and vaults built, but it did not appear that the owner knew that it was being done. The purchaser was afterwards ejected for non-performance of the contract. Held, that there was no such consent or knowledge followed by silence or acquiescence as would sustain a mechanic’s lien as against the owner.

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Appeal by plaintiffs from a judgment entered on the report of a referee in favor of the defendant Paddock

The following is the opinion of the referee.

Odell, Beferee.—This action is brought to enforce claims for labor and materials made by the plaintiffs against premises situated at the northeast corner of Seventh avenue and One Hundred and Twenty-fourth street in the city of New York Judgment is demanded that the interests of the defendants Paddock and Wood in the said premises be sold as provided by law, and that from the proceeds of such sale the plaintiffs be paid the amounts of their respective liens, and that, in case of a deficiency of proceeds, they have judgment therefor against the defendant Wood. It is alleged in the complaint that, at the times the said labor and materials were furnished, the defendant Paddock was, and that she still is, the owner of said premises in fee; that the defendant Wood was in possession thereof, with Mrs. Paddock’s consent, under an agreement to purchase the same; that said labor and materials were furnished by the plaintiffs under contracts made by them with the said Wood, and were rendered and used in or towards the erection of a building upon said premises with the consent of Mrs. Paddock, the owner. She, in her answer, denies such alleged consent. Whether or not it was given is the single question raised by her motion to dismiss the complaint upon the proofs submitted by the plaintiffs.

Chapter 342 of the Laws of 1885 provides that any person who shall perform any labor or furnish any materials used, or to be used, in erecting any house or building, or appurtenances to any house, building, or building lots, “ with the consent of the owner ” or his agent, may, upon filing a notice of lien, have a lien for the price or value of such labor or materials upon such house, building, or appurtenances, and upon the lot or premises upon which the same may stand or be intended to stand, to the extent of the right, title or interest at that time existing of such owner; and it is declared that’ an owner who has contracted to sell and convey the premises to another person shall be deemed to be the owner, within the intent and meaning of the act, until the deed conveying the premises pursuant to such contract has been actually delivered and recorded. The question in dispute is, what constitutes consent? This question is described by the defendant’s counsel as “ both lexicographical and juridical.” He contends that “ consent ” is used in the statute in what may be called its “ scientific sense,” and refers to Orabb’s English Synonyms to. show that there is a recognized and real difference in meaning between “ consent ” and other words of similar import which are frequently, if not commonly, used as its equivalents. In his preface the learned author of that excellent work explains his business to be “to mark the nice shades of distinction between words closely allied,” and his book contains no better illustration of his acuteness and skill .than will be found in his treatment of the allied words, “assent,” “consent,” “permit,” and “allow.” “As the act of an equal, he says, we 'consent to that in which we Lave a common interest with others ; we permit or allow what is

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for the accommodation of others ; we allow by abstaining _ to oppose ; we permit by a direct expression of our will; contracts are formed by the consent of the parties who are interested. * * * Consent respects matters of serious importance; permit and allow regard those of an indifferent nature; a parent consents to the establishment of his children; he permits them to read certain books; he allows them to converse with him familiarly. * * . * Assent may be given to anything, whether positively proposed by another or not; but consent supposes that what is consented to is proposed by some other person.” It is doubtful if the legislature in making laws uses language with such scrupulous exactness. Certainly in interpreting them the courts are apt to indulge in free translations. “ The .words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification." Holmes v. Carley, 31 N. Y., 289 . This rule seems to be peculiarly applicable in the construction of a statute which is declared to be a remedial statute, and which “ is to be construed liberally to secure the beneficial intents and purposes thereof.” Act 1885, § 25. In Miller v. Mead, 26 St. Rep., 155 , the court said that the difference between “ permission ” (as used in the Kings county lien law of 1862) and “ consent ” (as used in the act of 1885) was in no respect material. The two words are treated as equivalents in Rollin v. Cross, 45 N. Y., 770 . The learned counsel has cited Ottiwell v. Muxlow, 24 St. Rep., 38 , where the general term of the common pleas said that the meaning of “ consent" in the act of 1885 was well stated by the trial judge as follows: “ Consent ” implies a degree 6t superiority; at least, the power of preventing. It implies, not merely that the person accedes to, but authorizes, an act. This may be so, but I am not able to agree with the counsel that an express authority or consent is necessary. An owner may be estopped or become bound quite as effectually by an “ implied consent,” which Bouvier defines to be “ that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given.” Greenleaf says: “Where a landlord quietly suffers a tenant to expend money ■ in making alterations and improvements on the premises, it is evidence of his consent to the alterations.” 1 Greenl. Ev., § 197. In Husted v. Mathes, 77 N. Y., 390 , the courtsaid that consent may be implied from knowledge, and that, in the absence of any objection, silence may be deemed sufficient evidence of assent. In Nellis v. Bellinger, 6 Hun, 561 , the, plaintiff claimed a lien (under chapter 402, Laws 1854) upon land belonging to the defendant for labor performed by the plaintiff upon a house.which the defendant’s son had caused to be erected upon such land for his own use. The trial court found as facts that the defendant was present on several occasions while the work was in progress, and rendered some assistance in the erection of the house, and made no objection to the work being done, “ and thereby consented to the performance of said work.” On appeal the court held that the evidence clearly manifested the consent which the statute required, and said : “ The statute now gives a lien as well when the owner of land consents to the erection of a

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structure upon it as when he contracts directly for its construction, and such consent of the owner .may be proved by the fact that he entered into such contract, or by other acts or declarations, as well as by direct.evidence.” Where premises were rented to be used for a particular purpose, and no other, and the landlord, without objection, allowed the tenant to expend a considerable sum of money in fitting up the property for.' a different use and purpose, it was held that he had consented to the change, and was estopped from denying the tenant’s right to devote the property to the new use. Malley v. Thalheimer, 44 Conn., 41 . Quitacet consentire videtur is an old and familiar maxim of the law, and the books abound in instances of its application. The Massachusetts decisions, cited by the defendant’s counsel, seem to be at variance with the doctrine of the cases in our own courts, above referred to. See, also, Burkitt v. Harper, 79 N. Y., 273 .

But I am unable to find in the plaintiffs’ proofs any evidence, either of an actual consent by the defendant Paddock to the making of the improvements in the course of- which the work was done and the materials furnished for which the plaintiffs claim a lien; or of such knowledge thereof, followed by silence or acquiescence on her part, as warrants the inference of such consent. What are the facts? On the 18th of February, 1889, Mrs. Paddock contracted to sell the lots in question to the defendant Wood for the sum of $110,000, of which sum $5,000 was to be paid at the time of the execution of the contract, and $15,000 on the • delivery of the deed on the 16th day of April. The balance of the purchase money was to remain on bond and mortgage. Wood was unable to make the payment of $5,000 in cash on the signing of the contract, and persuaded Mr. Banning, who was Mrs. Paddock’s agent and representative in the transaction, to accept for that sum the note of himself and one Bouis Bresler, payable in thirty days from date. It was clearly understood by all the parties that the purchase was made by Wood for the purposes of a theater which he intended to build upon the premises, and that he was eager to commence work without delay, so that he might complete the building and open it by the following October. The contract gave him no right of entry or possession, and Banning testified that he (Wood) “was not to go on the property until the $5,000 note was paid, and theiilie could not do anything but excavate the foundation. * * * I told Mr. Wood that upon the payment of that note he could excavate for a foundation; that there was nothing to be done, no entrance to be had on the property, until that $5,000 was paid.” In answer to the question put to him by plaintiffs’ counsel, “He had authority for the excavation, had he not? ” the witness answered: “Hot until that note was paid. He had no right to touch a shovel of dirt or to go upon the premises; and then he was told that no stone must be laid, no foundation must be laid. After that note, if the note had been paid, if the $5,000 had been paid in cash, he could excavate only; but no foundation must be laid until the contract was fulfilled and he had taken his deed.

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He was told that at Mr. Freeman’s office.” Wood told Fanning that he would be able to pay the note before it became due out of the proceeds of property which his co-maker, Bresler, had already sola in Detroit. A portion of the premises was occupied by a tenant under an agreement which entitled him to a month’s notice to quit. As soon as the contract was signed, Fanning, for Mrs. Paddock, gave formal notice to the tenant that he must remove from the premises on or before the 21st day of March. This was so that Wood might be put into full possession on his completion of the contract. Wood seems to have commenced the work of excavation about the 1st of March, before any payment had been made upon the note, and without any permission from either Mrs. Paddock or her agent, Fanning. The fact that he was so engaged came to the knowledge of Mrs. Paddock about two weeks later. She visited the premises in company with Mr. Fanning, and saw the work of excavation going on. Her testimony is that she then protested to Mr. Fanning, and told him that she wanted the work tó stop. Mr. Fanning testifies that he did order the men to stop work. He says: “ I ordered them to stop; that that note had not been paid ; and that no more work must be done on there until that note was paid.” The work was in charge of a man named Hough, who was examined as a witness. His testimony varies somewhat from that of Fanning, and is as follows : “ He (Fanning) told me to tell Mr. Wood that if a certain $5,000 was not forthcoming he would stop us immediately at work. ‘If I don't get it in the morning,’ he says, ‘I will stop you to-morrow morning.’ At first he told me to stop work immediately, and then he said to go on, and he would see Mr. Wood in the morning; and, if the $5,000 were not forthcoming, we should have to stop work; for me to tell Mr. Wood that” If it were necessary to determine whether Fanning or Hough states the occurrence with greater accuracy, I should have no hesitation in accepting Mr. Fanning’s version as much more in accordance with plain probabilities; but, even if Hough’s version be the true one, it wholly fails to show any assent to the situation on the part of Mrs. Paddock. All that she did was to object and protest to Mr. Fanning that she wanted the work to stop, and it is plain from her testimony that she understood that he had communicated her protest to the man in charge. I can find in the proofs no satisfactory evidence that the entry of Wood upon the premises was with Mrs. Paddock’s permission, or that any part of the work of excavation was done with her consent. What proof is there that she consented to the construction of the foundation walls and vaults and other work for which the plaintiffs claim their liens? In Burkitt v. Harper, 79 N. Y., 273 , the court referred to the facts that “the lessors (the defendants) lived near the premises, and saw the building from time to time while plaintiff was engaged in its erection, and made no objection to the erection of the same.” In Husted v. Mathes, 77 N. Y., 388 , the defendant Catharine Storms knew that her husband was building the house upon her lot She lived but about a quarter of a mile away from where the house was being built, and made no objection. The court said that she “ received the

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benefit willingly.” In Otis v. Dodd, 90 N. Y., 838 , Judge Earl said thát “ During the progress of the work on the improvements, and about the time of the commencement thereof, the lessors (the defendants) came upon the premises, and advised about the location of the structures, and gave some directions as to the method of their construction.” And in Nellis v. Bellinger, 6 Hun, 560 , the defendant (the owner of the land) knew that his son was building a house thereon, and was present on several occasions during tfye progress of the work, and rendered assistance in the erection of the house, and resided in the neighborhood, and made no objection to the work being done. “The evidence shows (the court said) that the defendant was willing to have the house built upon his land, and encouraged the building of it.” The present case is barren of any such facts. Mrs. Paddock did not reside in the neighborhood of these premises. She visited them but once after the date of the contract of sale, and then made objection to the work of excavating that was being done by Wood without authority. It does not appear that she had any knowledge that the work of building the foundation walls was being proceeded with by Wood. Limning, her agent and attorney, resided in Hew Jersey. He testified that he did not know that the foundation of the building was being laid until it was nearly level with the sidewalk. When he heard of it he “ went up there,” he says, and told the man in charge of the work that it must be stopped. He also saw Bresler, Wood’s father-in-law, who was assisting Wood in the enterprise, and who, with Wood, signed the $5,000 note, and told him that he had “ ordered the work to be stopped, and that it must be stopped.” Doubtless Mrs..Paddock and Mr. Banning might have expressed their opposition to Wood’s energetic proceedings in some more forcible and effective manner, but what they did was quite sufficient to prevent the inference that they “ consented ” to any portion of the work or materials for which the plaintiffs seek to recover in this action. The consent to the laying of the corner-stone, given by Mr. Abbott a few days prior to the tenth of June, does not atone for the plain deficiencies of the plaintiffs’ case. The motion to dismiss the complaint as tó the defendant Paddock is, therefore, granted.

Henry Q. Atwater, for app’lts; Ohas. Edward Souther, for resp’ts.

This action is brought to foreclose certain mechanics’ liens. All the issues were referred, by consent, to Hamilton Odell, Esq., to hear and determine the same. After plaintiffs’ counsel had introduced a large amount of testimony, counsel for the defendant Paddock inquired whether the plaintiffs’ counsel intended to introduce any further evidence to prove that the defendant Mrs. Paddock, who was the owner of the land upon which the work had been done, ever gave her consent to the doing of the work. Plaintiffs’ counsel replied that he did not intend to introduce further testimony upon that point, and thereupon counsel for defendant Paddock moved to dismiss the complaint as to that defendant, which motion was granted. ' Subsequently judgment

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was entered in favor of the defendant Paddock dismissing the complaint upon the merits as to her, and for costs, and from such judgment this appeal was taken.

The defendant, Mrs. Paddock, was the owner of certain lands situated at Seventh avenue and One Hundred and Twenty-fourth street, in the city of New York, and sold the same to the defendant Wood. Mrs. Paddock resided in New Jersey, and did not personally make such sale, but was represented by Mr. Panning, who was an attorney at law, and also resided in New Jersey. The agreed price for the property was $110,000, which was to be paid as follows: $5,000 on the execution of the agreement; $14,200 by assuming a mortgage on the premises ; $75,800 by a mortgage to be given, and $15,000 in cash when the deed was delivered. The contract of sale was signed on February 18, 1889, but Wood was not then able to pay the $5,000, and induced Panning to accept a note for $5,000, dated February 19, 1889, signed by Wood and his father-in-law, one Bresler, payable thirty days from date. Five hundred dollars was paid upon the note on March 6, 1889, but the balance was not paid when the note became due on March 19th. On March 21, 1889, after urgent demands of payment had been made upon him, W ood paid $1,200 on account of the note, and on March 25, 1889, the remaining $3,300. The deed of the property was" to be delivered on April 16, 1889, but Wood was not able to pay at that time, or at any subsequent time, the $15,000 in cash, which the contract provided should be paid when tire deed was delivered; and such deed never was delivered. Wood purchased the lots with the intent to erect a theatre thereon, and was anxious to commence work at once in order that such theatre might be completed in the following October. The contract of sale did not give Wood the right to enter upon the land, but it appears that about the 1st of March workmen employed by him commenced excavating upon the land. Panning, according to his own testimony, had no authority to accept the note, but did accept the same without the knowledge of the defendant Paddock, nor did he have any authority to vary the terms of sale above set forth, and which had been approved by the defendant Paddock. Nor, so far as appears by the evidence, had he any express authority to authorize Wood to- enter upon the land before the delivery of the deed. Panning swears positively that when 'the defendant Wood applied to him for leave to enter upon the land to commence work at once, he told Wood that he could not so enter or do any work whatever upon the land until the note for $5,000 had been fully paid. The defendant Woodj on the other hand, testifies that he understood he was authorized to commence work as soon as the contract of sale had been signed. There is no evidence to show that either the defendant, Mrs. Paddock, or Panning, knew that work had actually been commenced until about the middle of March, when they visited the premises in question together. At that time one Hough was on the premises, superintending the work of excavation which was then going on. Mrs. Paddock testifies that she told Panning that the work must be stopped, and Panning testifies that he told Hough to stop work immediately.

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Hough’s version of the conversation between himself and Banning •differs somewhat from that given by the latter. His recollection was that Banning had first told him to stop work at once, but ¡afterwards he told him to go on and that he, Banning, would see .Mr. Wood in the morning, and if the $5,000 were not forthwith given, he should have to stop work; for him to tell Mr. Wood that. The referee was of the opinion that Banning’s testimony was more in accordance with the probabilities of the case, and that ■even accepting Hough’s version of the matter, it did not show any ■consent on the part pf Mrs. Paddock that the work should proceed. Subsequently, when the note was not paid at maturity, ¡Banning sent peremptory word that the work must stop, and it .appears to have stopped until the $5,000 was fully paid. After-wards foundation walls and vaults were constructed and some •other work was done upon the property,.but the evidence leaves it in doubt whether the defendant Mrs. Paddock even knew that ■such work was being done. There is no evidence that she visited rthe property again, or that she personally consented that such work •might be done. Wood had not paid the $15,000 in cash, and had mot received his deed, and Mrs. Paddock through Banning and "through Mr. Abbott, whom she afterwards married, was making ■■strenuous efforts to get Wood to make such payment, but the, payment never was made, and Wood was finally ejected fr.om the property sometime in the month of August. The plaintiffs, who ■did the work upon the property, were only partially paid by Wood, .for the work done and materials furnished by them, and thereupon filed the mechanic’s liens which this action is brought to .foreclose.

The experienced and competent referee before whom the action was tried appears to have very carefully and throughly considered ¡all the questions of law and fact involved in the case, and we think that his decision was correct In the elaborate opinion written by him, he reviews all the decisions which throw any light upon the construction which should be given to the word ■“ consent,” as used in the mechanic’s lien law of 1885, and adopts the view most favorable to the plaintiffs, holding that it was not necessary for the plaintiffs to prove the express consent of the defendant, Mrs. Paddock, but that such consent might be inferred, If, having knowledge that such improvements were being made upon her land, she remained silent or acquiesced. An examination of the evidence has also satisfied us that he was correct in his conclusion that the plaintiff did not prove either an actual ■consent of the defendant Mrs. Paddock to the making of such improvements upon her land, or such knowledge thereof, followed by silence or acquiescence on her part, as to warrant the inference •of such consent/ The referee in his opinion examined the material testimony at length, and as we concur in the result reached by him, it would subserve no useful purpose tor us to go over the same ground, and discuss the evidence m detail, as we could only repeat the reasons given by him for his conclusion.

The judgment should be Affirmed, with costs.

Van Brent, P. J., and Barrett, ¡J., concur. „