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JOSEPH KIELL v. AAC EMPLOYMENT CORP. ET AL. (08/27/69)

CIVIL COURT OF THE CITY OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.42782 <http://www.versuslaw.com>; 304 N.Y.S.2d 500; 61 Misc. 2d 104 August 27, 1969 JOSEPH KIELL, PLAINTIFF,v.AAC EMPLOYMENT CORP. ET AL., DEFENDANTS Nathaniel Rothstein for plaintiff. McCarthy & Nathanson for Gotham Estates, defendant. Philip Wagner, J. Author: Wagner


Philip Wagner, J.

Author: Wagner

 Action to foreclose a mechanic's lien.

The plaintiff, an architect, was hired by one James P. Maloney, President of AAC Employment Service, Inc., and MFO Employment Service, Inc., to prepare plans for alterations on certain basement premises at 182-4 Broadway, New York City, in November of 1963.

The premises were leased by the defendant Gotham Estates, the owner, to MFO Employment Service, Inc., on November 6, 1963.

The plans were to install partitions to be used in connection with AAC business. The contract price was $1,599.40 of which AAC paid $250. The present action is for the balance, $1,349.40, the amount of plaintiff's lien filed in the County Clerk's office on April 27, 1964.

On January 11, 1965, the defendant Gotham Estates filed an undertaking for $1,575 as principal, with the defendant National Surety Corporation, as surety, pursuant to court order entered December 22, 1964 in accordance with section 19 of the Lien Law.

The drawing of plans and specifications by an architect constitutes "improvement" pursuant to section 2 (subd. 4) of the Lien Law.

However, for the plaintiff to recover, he must show that the defendant expressly or impliedly consented to the work and not merely that plaintiff's work related to the improvement of the defendant's property.

It is conceded that the defendant owner signed the authorization for the plans that were filed with the Department of Housing.

To spell out consent, the owner must be an affirmative factor in procuring the improvement to be made or have possession and control of the premises and consent to the improvement in the expectation that he will reap the benefit of it. (Rice v. Culver, 172 N. Y. 60.)

The signing of the authorization required by the Housing Department to process the application does not in and of itself denote consent. (Rice v. Culver, 172 N. Y. 60, supra.)

The evidence is clear that the defendant never dealt with the plaintiff except to obtain his signature to file the plans.

All of the negotiations with relation to the improvements were between the sublessee and the plaintiff architect; thus, it appears that the plaintiff relied on the sublessee's ability to pay.

The fact that the defendant owner, Gotham Estates, advanced moneys to the general contractor does not aid the plaintiff, since plaintiff did not rely on such act of the defendant as implying consent; and, in any event, the plaintiff's lien in such a case would extend only to the amount which the general contractor would have a right to recover (Lien Law, ยง 4; Lorber v. Eskof ...


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