W. J. Elliott Co. v. Tapscott

Per Curiam: While the finding is justified that the husband acted as the agent of his wife, E. Louise Tapscott, it is not proven that he was the agent also of the other defendant, and the finding and judgment in that respect are erroneous. Although the finding and judgment as to both defendants proceed upon the theory that the work was done at the request of the defendants, it is urged in this court that the defendants are liable because they permitted the work to be done, thereby subjecting the property to the statutory lien. But the complaint proceeds on contract. 911 But to base a lien on consent or permission, the facts must be alleged in the complaint (Burkitt v. Harper, 79 N. Y. 273), inasmuch as the cause of action would not be upon contract, nor is the owner of the property in such case a debtor, nor may a judgment for deficiency be entered against her. (Husted v. Mathes, 77 N. Y. 388, 390.) The evidence of consent on the part of Lillian B. Tapscott is limited to the statement: “I also saw the other lady; but Mrs. Tapscott gave me the orders.” The witness probably meant to imply that he saw her on the premises. The evidence is quite insufficient. The judgment as to E. Louise Tapscott should be affirmed, with costs, but as to Lillian E. Tapscott it is reversed and a new trial ordered, costs to abide the final award of costs. Jenks, P. J., Thomas, Carr, Rich and Putnam, JJ., concurred. Judgment of the County Court of. Nassau county as to E. Louise Tapscott affirmed, with costs, but as to Lillian E. Tapscott reversed and a new trial ordered, costs to abide the final award of costs.