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Meistrell v. Baldwin

Supreme Court of New York, Appellate Division

May 26, 1911

HENRY F. MEISTRELL, Appellant,
v.
VIRGINIA W. BALDWIN, Respondent.

APPEAL by the plaintiff, Henry F. Meistrell, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn in favor of the defendant, entered in the office of the clerk of said court on the 16th day of February, 1911, dismissing the complaint at the close of the plaintiff's case.

COUNSEL

Cornelius Furgueson, Jr., for the appellant.

Jacob H. Corn, for the respondent.

HIRSCHBERG, J.;

The defendant is the owner of certain premises in the borough of Brooklyn which were leased by her to a tenant named Quimby for the period of three years, commencing April 1, 1908. The tenant remained in possession for about two years when he abandoned possession and since that time they have been in the possession of another tenant of the defendant. In the latter part of the month of December, 1909, Quimby employed the plaintiff to install a heating apparatus in the premises, and the work was completed about a month before Quimby left. He failed to pay anything for the work, and this action is brought to foreclose a mechanic's lien placed upon the premises, and is instituted against the defendant on the theory that she consented to the improvements and became thereby

Page 661

liable for their cost. The complaint was dismissed at the close of the plaintiff's case on the ground that the facts did not establish a cause of action.

The provisions of the statute involved in the controversy are contained in section 3 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38) and are as follows: 'Mechanic's lien on real property. 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.'

It was clearly established by the evidence that the lease between the defendant and Quimby provided in express terms that he should have a steam heating plant installed in the premises, for which he was allowed the sum of $200 per month by way of deduction from the rent. It further appeared without dispute that the defendant called on the plaintiff and sent him to Quimby to make the contract for the work. It also appears that the plaintiff had done some work of similar character for the defendant in other premises. She told the plaintiff that she was so well pleased with the work that she wanted the same kind done in the premises occupied by Quimby; that it was necessary that heating apparatus should be placed there; that she wanted him, the plaintiff, to do the work, and she asked him to go to Qumby to get the contract and to tell Quimby that she had sent him there. The plaintiff thereupon saw Quimby, secured the contract and performed the work, as has been stated, but his demand for payment from Quimby was refused.

The case as made out by the plaintiff establishes a cause of action. The provision in the lease in reference to the work, and the act of the defendant in directing it, constitute a sufficient consent within the purpose and requirements of the statute. In Schmalz v. Mead (125 N.Y. 188, 193) the court said: 'It was the design and purpose of the statute to charge the

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land with debts contracted in improving it by the erection of buildings thereon in case the owner consented or permitted the work to be done, although under an agreement made with the vendee under an executory contract.'

In McLean v. Sanford (26 A.D. 603) it was held that where a lease stipulates that a tenant may retain from the rent a definite amount for repairs and renovations, repairs made in pursuance thereof to the extent in cost of the limit fixed are made with the consent of the owner, within the meaning of the Mechanics' Lien Law.

In New York Elevator Supply Co. v. Bremer (74 A.D. 400) it was held that where a lease contained a covenant by which the lessees agreed to install a steam heating and elevator plant upon the premises at their own expense, the plant to belong to the lessors at the completion of the term, and the lessees entered into a contract for the work, with the knowledge of the lessors, the inference was justified that the work was done with the consent of the lessors, rendering the property subject to a mechanic's lien for the cost of the work. The court said (p. 402): 'The lease in this case having provided that the tenants should put in a steam heating and elevator plant and make other repairs during the term of the lease at their own cost and expense, such improvements to belong to the lessors upon the expiration of the lease, coupled with the fact that the agent of the lessors had notice of the contract which had been made with the tenants by the plaintiff, is undoubtedly sufficient from which to infer a consent upon the part of the owners to make ...


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