NATIONAL WALL-PAPER CO. v. SIRE et al.

[163 N. Y. 122; 57 N. E. 293.]

(Court of Appeals. May 15, 1900.)

MECHANIC'S LIENS-CONSENT OF OWNER REPAIRS BY TENANT.

A lessee, who was to make necessary repairs at his own cost, which were to belong to the owner at the termination of the lease, contracted for extensive repairs, and during the five months the work progressed the owner constantly examined and admired the same, but never affirmatively consented to the work, and two months after its completion he re-entered and took possession. Held, that the work was done with the owner's consent, within Laws 1885, c. 342, § 1, as amended by Laws 1895, c. 673, giving a mechanic's lien for work done on a building with the consent of the owner.

Gray and Landon, JJ., dissenting.

NOTE. CONSENT OF OWNER UNDER MECHANIC'S LIEN LAW.

a. In general.

b. When improvements made by vendee under
executory contract of sale.

c. When improvements made by tenant.

a. In general.

Lien Law (Chap. 418 Laws 1897) Sec. 3. A contractor, sub-contractor, laborer or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-contractor, shall have a lien for the principal and interest of the value, or the agreed price, of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article.

The consent of an owner within the meaning of the lien law implies a degree of superiority, at least the power of prevention. It implies not merely that a person accedes to, but authorizes an act.

Ottiwell v. Watkins, 15 Daly, 308; 24 St. Rep. 38; 6 Supp. 518.

There need not be an express consent of the owner, as the same may be implied from his conduct and attitude with respect to the improvements, but

1900]

National Wall-Paper Co. v. Sire.

Appeal from supreme court, appellate division, first depart

ment.

Action by National Wall-Paper Company against Meyer L. Sire and another. From a judgment of the appellate division (37 App. Div. 405; 89 St. Rep. 1009; 55 Supp. 1009) reversing a judgment in favor of plaintiff, plaintiff appeals. Reversed.

Henry B. Gayley and Matthew C. Fleming, for appellant.

Albert I. Sire, for respondent.

O'BRIEN, J. This was an action to foreclose a mechanic's lien filed by the plaintiff on the hotel premises known as the "Stuart House," situated on the northeast corner of Forty-Firs street and Broadway, in the city of New York, of which the de fendant was the owner. On the 17th of December, 1895, the defendant, by a written lease, demised these premises to a tenant

CONSENT OF OWNER UNDER MECHANIC'S LIEN LAW,-continued.

the facts from which the inference of a consent may be drawn must be such as to indicate at least a willingness on his part to have the improvements made, or an acquiescence in the means adopted for that purpose, with know edge of the object for which they are employed.

Cowen v. Paddock, 137 N. Y. 188; 33 N. E. 154.

Thus when a person contracted to sell a vacant lot, a part of the consid eration of which was to be paid down and the balance in two months ther after, upon payment of which sums the vendee was entitled to a deed and t possession, such vendor cannot be said to have consented to work done up on the premises at the instance of the vendee, who went upon the lot withour permission before making any payment, where the vendor, upon discovery of the work, objected thereto and insisted that it must stop. but on the vendee paying the first installment allowed him to finish the work then commenced, refusing, however, to allow him to proceed further than that until payment of the balance, which was never paid, subsequently causing the forfeiture of the contract.

Id.

In general, proof of the owner's knowledge and approbation of work or furnishing of materials is sufficient to warrant a finding of consent thereto. Helwig v. Blumenberg, 28 St. Rep. 75; 7 Supp. 746.

It is not necessary that every person furnishing materials or labor to a

for the term of 10 years from that date. The rent reserved was $32,000 for the first year, which was to be increased at the rate of $1,000 per year for each of the four years following, and for the remaining five years of the term it was fixed at $37,000 per year, payable in equal monthly payments on the 1st day of every month during the term. This lease contains numerous covenants, and among them was a provision to the effect that the tenant should make the necessary repairs at his own cost, and any improvements so made should belong to the owner when the lease was terminated. It was provided that, in case of default in any of these covenants, whether for the payment of rent or otherwise, it should be lawful for the landlord to re-enter and repossess and enjoy the premises, the tenant expressly waiving the service of any notice for that purpose, or any legal process for the recovery of the possession; and, in case of a re-entry by the owner for the non-payment of rent, he might elect to hold the tenant liable for

CONSENT OF OWNER UNDER MECHANIC'S LIEN LAW.-Continued.

contractor should obtain the consent of the owner of the building to do so. If he knowing that labor or materials are being furnished to the contractor does not object to it he will be deemed to have consented, within the meaning of the statute.

Wheeler v. Scofield, 6 Hun, 655.

A finding of consent is justified where the owner lives within thirty feet of the building, sees it in course of erection, and gives her own check on account thereof.

Dennis v. Walsh, 41 St. Rep. 103: 16 Supp. 257.

The consent of an owner to an improvement may be inferred where she was present when her husband contracted for the work and almost continuously during the progress thereof and the money to pay for it was raised by a mortgage upon the premises.

Brunold v. Glasser, 25 Misc. 285; 87 St. Rep. 1021; 53 Supp. 1021.

Under a local statute in which the provision regarding consent of the owner was substantially the same as in the present statute, it was held that a married woman consented to an improvement upon premises owned by her, when she was informed of the intention of making the same, knew of the work while it was going on, and received the benefit willingly.

Husted v. Mathes, 77 N. Y. 388.

So there is a consent by the owner of premises to the erection of a house thereon, where the same was caused to be built by his son for the latter's

1900;

National Wall-Paper Co. v. Sire.

the sum of $15,000 as liquidated damages, and to secure the landlord in this respect it was provided that the tenant should deposit with him the sum of $5,000 in cash, to be held as security for the faithful performance of all the covenants and conditions contained in the lease; and in case of default in the performance of any of them the landlord was permitted to retain that sum, to be applied by him on the liquidated damages fixed by the terms of the lease. The demised premises were to be used by the tenant for a first-class hotel and restaurant. The tenant went into possession of the premises shortly after the execution of the lease. On the 6th of May, 1896, following the execution of the lease, the tenant entered into a contract with the plaintiff to make extensive repairs, alterations, and improvements in the house.

CONSENT OF Owner Under MECHANIC'S LIEN LAW,-continued.

own use, the father resided in the neighborhood, was present on several occasions while the work was in progress, encouraged the same and rendered some assistance therein.

Nellis v. Bellinger, 6 Hun, 560.

The fact that there was no written agreement for the performance of the work or furnishing materials does not affect the right to file a lien therefor I where the owner has consented to the same.

Marshall v. Cohen, 11 Misc. 397; 65 St. Rep. 310; 32 Supp. 283.

The rule that an owner who stands by and sees a sub-contractor at work or furnishing materials without objecting thereto, thereby consents to the same within the meaning of the lien law, has no application where a contractor has been paid in good faith and without collusion.

Lien law, sec. 4.

La Pasta v. Weil, 20 Misc. 545; 80 St. Rep. 275; 46 Supp. 275.

De Lorenzo v. Von Raitz, 44 App. Div. 329; 94 St. Rep. 736; 60 Supp. 736. b. When improvements made by vendee under executory contract of sale. An owner who agrees to sell to a builder on completion of certain specified buildings, at which time he is to give a deed thereof, thereby "consents" to the improvement and his interest in the premises may be subjected to a

lien therefor.

Hobby v. Day, 22 St. Rep. 92; 3 Supp. 900.

Miller v. Mead, 26 St. Rep. 125; 6 Supp. 273.

Hart v. Wheeler, 1 T. & C. 403.

Gates v. Whitcomb, 6 T. & C. 341.

Consent on the part of an owner is shown, where improvements are made

Under this contract the plaintiff was to panel the walls of the reception room from baseboard to cornice with Lincrusta Walton; to panel off the two ceilings with a border of relief ornament close to cornice; to paint the walls and ceilings five coats, and the woodwork in three coats of oil; to put up new picture molding; to cut out the wall of south side of the room, and supply and put in place white wood columns, pilasters, bases, and cornices with composition ornaments, and to paint the same like the woodwork of the room; to take out the dumb waiter, seal up the floor, and make good plaster work; to touch up with gold leaf all relief ornaments on screen at the entrance of the room and high lights of ceiling ornament. The main hall was to be painted in particolors in oil. From that point to the top of the house, including the seventh floor, the walls and ceilings of the rooms were to be painted and decorated in an expensive style. The woodwork

CONSENT OF Owner Under MECHANIC'S LIEN LAW,-continued.

pursuant to an agreement in which he contracted to sell the premises and advance moneys to enable the purchaser to make such improvements, the title not to pass until completion, when the purchaser was to give a mort gage on the land for the purchase price and the moneys advanced, especially where the work was prosecuted under the agreement with the vendor's knowledge.

Schmalz v. Mead, 125 N. Y. 188; 26 N. E. 251.

So the fact that a contract of a similar nature contained a provision that in case a mechanic's lien should be filed against the property the same should be subsequent to the lien and claims of the vendor, does not affect the lien or in any way change the situation.

Miller v. Mead, 127 N. Y. 544; 28 N. E. 387.

And the fact that the contractor abandoned the contract after materials were furnished by another, does not affect the right of the latter to a lien. Miller v. Mead, 26 St. Rep. 125; 6 Supp. 273.

But a contract of sale not providing for improvements cannot, in itself, be construed as a "consent" of the owner where the same is parol and provides for a sale of a lot to a person, who erects thereon a house set upon blocks and posts.

Moore v. McLaughlin, 11 App. Div. 477; 76 St. Rep. 256; 42 Supp. 256. A vendor, who has entered into an executory contract for the sale of premises, which gives the vendee the privilege of removing a building situate upon the premises, from one part of the lot to another, but gives the vendor no power to require or prevent such removal, cannot be said to consent to