Muldoon v. . Pitt

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 271 This was a proceeding in the Common Pleas of New York, under the mechanics' lien law of 1863. (Ch. 500, Laws of 1863, p. 859, etc.) It involved the construction of the 6th section of the act which defines the cases in which a lien shall exist, and the precise inquiries necessary to be answered in order to dispose of this case is in what sense the word "owner" is employed in that section. The section provides that any person who should thereafter * * in pursuance of or in conformity with the terms of any contract with or employment by the owner, or by or in accordance with the directions of the owner or his agent, perform any labor or furnish any materials toward the erection of any building in the city of New York, should, on complying with the 6th section of the act, have a lien for the value of such labor and materials — upon such building and the appurtenances, and lot on which the same shall stand, to the full value of such claim or demand, and to the extent of the right, title and interest then existing of the owner of said premises. The settled construction of this section is, that no lien can be created on the interest of any person as owner of the premises, except such person shall, either himself or by his agent, enter into a contract for doing the work, either express or implied. All this is implied in the expressions describing the conditions which are necessary to a lien. To that end, the labor or materials must be furnished in conformity with a contract with or employment by, or by the directions of the owner or his agent. Together, these phrases mean contracts express or implied; and no one is owner in the sense of this statute, who is not contractor also for having the work or materials expended or performed upon his land. Knapp v.Brown (45 N.Y.R., 207), is fully in point, and establishes *Page 273 the construction stated. The appellants were the owners in fee of the lot in question, and had leased it for a dwelling and bathing establishment to Vierkant for five years. He covenanted that no alteration should be made on the premises except in basement, floor and cellar, without the written consent of the appellants for such purpose, and that such changes of doors, windows, partitions, plumber's work, etc., etc., and all things belonging thereto, should be restored as they were at the commencement of the lease, prior to its end, by the lessee, at his own expense, if the lessors desired. Vierkant contracted with Muldoon, the appellants did not. Their only instruction was by way of supervision, to see to it, at Vierkant's request, that the building to be erected for him and the alterations to be made in the existing building, should be suitable to his interest and not injurious to theirs; they not having given any consent, in writing, to alterations. These directions, however positive and effectual in regulating the work, did not constitute them, in any sense, parties to a contract, express or implied, with Muldoon. The testimony left no room for any other conclusion, and the Common Pleas were well warranted in reversing the decision of the referee in respect tö these defendants. The proceeding under which their determination was made is peculiar in its character and is regulated by the 7th section of the act. (Laws of 1863, p. 863.) The court is authorized to refer the whole matter to a referee to examine, and pass upon the rights of the respective parties, and report upon the same in a summary manner, as in case of claims to surplus moneys in mortgage cases, on which every party shall be at liberty to take proofs for or against any claim or lien, and such judgment or decree shall be made thereon as to the rights and equities of the several parties, among themselves and against any owner, as may be just. An appeal is given to the General Term, to be heard and decided as in case of appeals from an order at Special Term, and also to the Court of Appeals, by any party held liable for or claiming more than five hundred dollars. When, upon an issue, a trial by jury is a matter of right, a *Page 274 final judgment ought not to be rendered by a court on appeal, contrary to the finding of a jury, unless it affirmatively appears as an inevitable necessity that the party cannot succeed upon a new trial. But in a proceeding of an equitable character it is only necessary that the appellate court should be satisfied that a final judgment will not work injustice. In this case it was obvious that the whole merits were before the court, and there was therefore no necessity for granting a new trial, for, on the principles settled by the decision, the plaintiff could not maintain his claim against the appellant. Judgment should be affirmed with costs. All concur. Judgment affirmed.