Burkitt v. Harper

The statute relative to mechanics’ liens in the counties of Kings, and Queens, provides that any person who shall hereafter perform any labor or furnish any materials in building, altering or repairing any house or other improvement upon lands, etc., by virtue of any contract with the owner thereof, or his agent, or any-person permitted by the owner of such lands to build, alter or improve as aforesaid, shall have a lien, etc. (Laws 1862, chap. 478, § 1.)

The defendant, Davis, holds the lands in question under a lease for eight years from March 5, 1877, granted by the defendants Harper and Eldert, who are owners of the fee of the lands. The lease contained the following stipulations: 1. That the improve-, ments built, or to be built upon the lands, should revert to the lessors at the expiration of the lease. 2. That the lessee should insure for at least one-half the costs of the improvements afore-, said, and, in case of fire, ■ should devote the proceeds of such insurance to the restoration of such improvements. 3. That the lessee might, at any time, within three years, purchase the demised premises for $5,000.

It is not disputed that the Legislature, by the statute cited, intended to authorize a lien upon the lands of the reversioner in a case like this, provided the work was performed, and the,.materials *584were furnished with his permission, and such seems to be a proper construction of the statute. Words are to be taken in a natural and obvious sense, and not in a sense unnecessarily restricted or enlarged. (Martin v. Hunter’s Lessee, 1 Wheat., 304; Waller v. Harris, 20 Wend., 561.) Lessees are not owners of the laud, but they have only a chattel interest therein. (1 R. S., 722, § 5.) The reversion is the chief estate, and the reversioner is in law regarded-as the owner of the land. (Smith v. Ferris, 6 Hun, 553.)

The lessees were under no legal obligation to make the improvements in question. They were made with the knowledge and approval of the lessors, and, by the terms of the lease, will belong to them absolutely at the termination thereof. The permission of the lessors to make the improvements was manifested, not only by the tonus of the lease to which I have referred, but by their approval of the work while in progress, and by abstaining from making any objection thereto. It is true they might not have been able to prevent the work being done, but the disability arose from their own acts in making the lease, and they might have withheld their permission by a simple notice to the lienor.

We ai*e of opinion, therefore, that the lessees were permitted by the lessors to make such improvements. (Rollin v. Cross, 45 N. Y., 770; Nellis v. Bellinger, 6 Hun, 560, and cases cited.) The cases of Knapp v. Jackson (45 N. Y., 207), and Muldoon v. Pitt (54 N. Y., 269), are not in point. The statute which governs those cases require that the work shall be done “in accordance with the direction of the owner.” The court very properly held that the statute gave no lien against the owner, unless a con-' tract with him, express or implied, had been made. , Where one orders or directs work to be done on his land, the law will imply a contract on his part to pay for it, but no such implication can be drawn from his merely permitting the work to be done by a lessee. Under the statute which governs this case, however, no contract, express or implied, with the owner is necessary; but his land is bound, if he permits others to make improvements thereon. In this respect there is a marked difference between the statutes. The Legislature, by the statute applicable to this case, expressed their intention that,- one who provides beforehand for taking the benefits produced by the property or labor of another, in the form . *585of improvements upon his land, or one who assents to the making of such improvements upon his land, knowingly, and for the purpose of deriving the present or future benefit thereof, should have his land subjected to a lien for the value thereof. Cases may arise where a tenant makes repairs in fulfillment of his legal obligation to do so, or causes improvements to be made without either the assent or dissent of his landlord. In such cases the general authority conferred by the lease might not suffice to prove the permission required by the statute last referred to. There must be something in the lease, or some act done by the landlord aliunde the lease, from which an inference may be properly deduced, that the particular work for which a lien is claimed was done with his permission. If the work is done against his will, or without his consent, no lien on his interest is created. If the tenant obtains his permission to do the work, such lien may follow.

Upon the principle stated' we think enough was shown1 tb bind the lands of the lessors in this case. ’’

The judgment must therefore be affirmed, with costs.

Judgment affirmed, with costs.