Lowry v. Woolsey ( 1894 )

CULLEN, J.

This is an appeal from a judgment in favor of the defendant Woolsey entered upon the report of a referee. The action was brought to enforce a mechanic’s lien. The defendant Woolsey was the owner of certain lands in Long Island City. On March 20, 1888, he entered into an agreement with the defendant Henderson by which, on May 1st following, a lease was to be executed by the parties for the demise of the land to Henderson for the period of 17 months, at a specified rental, payable quarterly in advance, which lease should contain certain specified provisions for the purchase and sale of the property, at the option of either party. The agreement further provided that Henderson might enter upon the premises forthwith, and also contained a covenant on Ms part to expend before February, 1889, the sum of $25,000, in improving and preparing the lands for a race course. It was further provided that, in case of default in the payment of the rent or in any of the covenants of the agreement or the lease to be made thereunder, Woolsey might re-enter the land and hold the same as before. Henderson entered under-tMs agreement. On May 1st he failed to pay the rent due in advance, and refused to execute the lease, and neither rent has been paid nor lease executed since. On May 18th the plaintiff’s testator made a contract with Henderson for the erection of racetrack structures. For work done by Mm he filed a mechanic’s lien, the subject of this action. As to the questions of law involved on this appeal there is but little that can be added to the very clear opinion delivered by the referee. That, if the original agreement had remained in force, the plaintiff would have acquired a valid lien on the interest of the defendant Woolsey in the lands, is unquestionable, for the improvements were not only made with his consent, but in express compliance with the terms of the agreement. Schmalz v. Mead, 125 N. Y. 188, 26 N. E. 251; Otis v. Dodd, 90 N. Y. 341. The case cited by the counsel for the defendants (Cornell v. Barney, 94 N. Y. 394) arose under the old statute as to the city of New York, and has no application to the present laws. But it is equally clear that on Henderson’s default, and his refusal to execute the lease or pay the rent, Woolsey had the right to rescind the agreement, and from that time Henderson, if in possession of the land, would be but a trespasser. Graves v. White, 87 N. Y. 463. The referee has found, not only that the contract was rescinded by Woolsey, but that Woolsey notified the plaintiff’s testator that Henderson had lost his right in the land. The evidence, we think, justified these findings. While the original plaintiff is dead, and cannot contradict the statement of the witnesses as to the notice given him, Woolsey testified to notice given to Lowry, the foreman of the workmen. It is significant that Lowry is not produced to contradict this evidence, nór is his absence accounted for. The only criticism on the rescission that can be made is that Woolsey did not forcibly oust Henderson or prevent the entry of the plaintiff’s workmen. This, we think, he is not compelled to do. The case in that respect is like that of Cowen v. Paddock, 137 N. Y. 188, 33 N. E. 154, where it was held that the failure of the owner to eject the contractor as an intruder did not subject her to liability as for a consent, it being shown that she had forbidden a continuance of the work. At the time,- therefore, that plaintiff’s testator made his contract with Henderson and performed the work, Henderson was a trespasser without title, and his contract could not bind Woolsey, the owner. Spruck v. McRoberts, 139 N. Y. 193, 34 N. E. 896. The judgment appealed from should be affirmed, with costs. All concur.