Chamberlin v. McCarthy ( 1891 )

Learned, P. J.

We think this injunction should- not stand. McCarthy owned the land, and leased it to Brind & Pashkian. They purchased of plaintiff certain boilers and steam-fittings and the like, and had them put in the buildings. For these purchases they owe. The plaintiff filed a mechanic’s lien against the interest of Brind & Pashkian in the premises, and he now brings this action to foreclose. It appears that Brind & Pashkian abandoned and surrendered their lease, and McCarthy, as owner, took possession, and that his present tenants are using the boiler and fittings and the like. The plaintiff fears that these things will be injured by such use, and therefore obtained an injunction forbidding McCarthy to use them until the decision of the action. The effect of the filing of the notice of lien, assuming it to be valid, is to create a lien on the interest which Brind & Pashkian had in the premises. Whether this boiler and these fittings became a part of the property of the owner, or whether they were such fixtures that Brind & Pashkian could remove them at the end of their term, we need not decide. We may assume that if the plaintiff had, by contract with McCarthy, put in these fixtures, he would have had a lien on McCarthy’s interest. But a reference to chapter 342, Laws 1885, § 1, will show that the lien is only on the interest in the land of the person for whom the work is done, either directly or through a contractor. The language is: “Whether owner in fee, or of a less estate, or whether a lessee for a term of years, ” etc. Now, while it may be that, after the filing of the notice of the lien, the lessee could not convey the leasehold estate free from the lien, yet it is by no means clear that the landlord could not re-enter for non-payment of rent. However this may be, there is no propriety in preventing the owner of the fee from using the property which has thus been attached to his land. If the tenants had lawfully removed these fixtures, then they would not have-been affected by the notice of lien, because that is a lien on the interest in land; and, if these fixtures are rightfully removable, then they are not part of the land. On the other hand, if these became a part of the land, (as plaintiff seems to claim under Ward v. Kilpatrick, 85 N. Y. 413,) then McCarthy, as the landlord, is rightfully in possession, and cannot properly be prevented from using his property. The plaintiff had no lien except on the leasehold interest of Brind & Pashkian. Whether that has ceased or not is not shown. At any rate, the mechanic’s lien cannot operate to increase the rights which the lessee had against the lessor. The injunction order is reversed, with $10 costs and printing disbursements, and motion for injunction denied, with $10 costs. All concur.