Cowen v. Paddock , 43 N.Y. St. Rep. 342 ( 1891 )

Andrews, J.

This action is brought to foreclose certain mechanics’ liens. All the issues were referred, by consent, to Hamilton Odell, to hear and determine the same. After plaintiffs’ counsel had introduced a large amount of testimony, counsel for the defendant Paddock inquired whether the plaintiffs’ counsel intended to introduce any further evidence to prove that the defendant Mrs. Paddock, who was the owner of the land upon which the work had been done, ever gave her consent to the doing of the work. Plaintiffs’ counsel replied that he did not intend to introduce further testimony upon that point, and thereupon counsel for defendant Paddock moved to dismiss the complaint as to that defendant, which motion was granted. Subsequently judgment was entered in favor of the defendant Paddock, dismissing the complaint upon the merits as to her, and for costs, and from such judgment this appeal was taken.

The defendant Mrs. Paddock was the owner of certain lands situated at 7th avenue and 124th street, in the city of Hew York, and sold the same to the defendant Wood. Mrs. Paddock resided in Hew Jersey, and did not personally make such sale, but was represented by Mr. Banning, who was an attorney at law, and also resided in Hew Jersey. The agreed price for the property was $110,000, which was to be paid as follows: $5,000 on the execution of the agreement, $14,200 by assuming a mortgage on the premises, $75,800 by a mortgage to be given, and $15,000 in cash when the deed was delivered. The contract of sale was signed on February 18, 1889; but Wood was not then able to pay the $5,000, and induced Banning to accept a note for $5,000, dated February 19, 1889, signed by Wood and his father-in-law, one Bresler, payable 30 days from date. Five hundred dollars was paid upon the note on March 6, 1889, but the balance was not paid when the note became due, on March 19th. ' On March 21, 1889, after urgent demands of payment had been made upon him, Wood paid $1,200 on account of the note, and on March 25, 1889, the remaining $3,300. The deed of the property was to be delivered on April 16, 1889, but Wood was not able to pay at that time, or at any subsequent time, the $15,000 in cash which the contract provided should be paid when the deed was delivered, and such deed never was delivered. Wood purchased the lots with the intent to erect a theater thereon, and was anxious to commence work at once, in order that such theater might be completed in the following October. The contract of sale did not give Wood the right to enter upon the land, but it appears that about the 1st of March workmen employed by him commenced excavating upon the land. Banning, according to his own testimony, had no authority to accept the note, but did accept the same, without the knowledge of the defendant Paddock; nor did he have any authority to vary the terms of sale above set forth, and which had been approved by the defendant Paddock; nor, so far as appears by the- evidence, had he any express authority to authorize Wood to enter upon the land before the delivery of the deed. Banning swears positively that when the defendant Wood applied to him for leave to enter upon the land to commence work at once he told Wood that he could not so enter, or do any work whatever upon the land, until the note for $5,000 had been fully paid. The defendant Wood, on the other hand, testifies that he understood he was authorized to commence work as soon as the contract of sale had been signed. There is no evidence to show that either the defendant Mrs. Paddock or Banning knew that work had actually been commenced until about the middle of March, when they visited the premises in question together. At that time one Hough was on the premises, superintending the work of excavation which was then going on. Mrs. Paddock testifies that she told Banning that the work must be stopped, and Banning testifies that he told Hough to stop work immediately. Hough’s version of the conversation between himself and Banning differs somewhat from that given by the latter. His recollection was that Banning had first told him to stop work at once, but afterwards he told him to go on, and that he (Banning) would see Mr. Wood in the morning, and, if the $5,000 were not forthwith given, he should have to stop work; for him to tell Mr. Wood that. The referee was of the opinion that Banning’s testimony was more in accordance with the probabilities of the case, and that, even accepting Hough’s version of the matter, it did not show any consent on the part of Mrs. Paddock that the work should proceed. Subsequently, when the note was not paid at maturity, Banning sent peremptory word that the work must stop, and it appears to have stopped until the $5,000 was fully paid. Afterwards foundation walls and vaults were constructed, and some other work was done upon the property; but the evidence leaves it in doubt whether the defendant Mrs. Paddock even knew that such work was being done. There is no evidence that she visited the property again, or that she personally consented that such work might be done. Wood liad not paid the $15,000 in cash, and had not received his deed; and Mrs. Paddock, through Banning and through Mr. Abbott, whom she afterwards married, was making strenuous efforts to get Wood to make such payment; but the payment never was made, and Wood was finally ejected from the property some time in the month of August. The plaintiffs, who did the work upon the property, were only partially paid by Wood for the work done and materials furnished by them, and thereupon filed the mechanics’ liens which this action is brought to foreclose.

The experienced and competent referee before whom the action was tried appears to have very carefully and thoroughly considered all the questions of law and fact involved in the case, and we think that his decision was correct. In the elaborate opinion written by him he reviews all the decisions which throw any light upon the construction which should be given to the word “consent,” as used in the mechanic’s lien law of 1885, and adopts the view most favorable to the plaintiffs, holding that it was not necessary for the plaintiffs to prove the express consent of the defendant Mrs. Paddock, but that- such consent might be inferred if, having knowledge that such improvements were being made upon her land, she remained silent or acquiesced. An examination of the evidence has also satisfied us that he was correct in his conclusion that the plaintiffs did not prove either an actual consent of the defendant Mrs. Paddock to the making of such improvements upon her land, or such knowledge thereof, followed by silence or acquiescence on her part, as to warrant the inference of such consent. The referee in his opinion examined the material testimony at length, and, as we concur in the result reached by him, it would subserve no useful purpose for us to go over the same ground, and discuss the evidence in detail, as we could only repeat the reasons given by him for his conclusion. The judgment should be affirmed, with costs. All concur.