Nat'l Wall-Paper Co. v. Sire

• Decision Date: 15 May 1900
• Citation: 57 N.E. 293,163 N.Y. 122
• Parties: NATIONAL WALL-PAPER CO. v. SIRE et al.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 122

57 N.E. 293

NATIONAL WALL-PAPER CO.

v.SIRE et al.

Court of Appeals of New York.

May 15, 1900.

Appeal from supreme court, appellate division, First department.

Action by National Wall-Paper Company against Meyer L. Sire and another. From a judgment of the appellate division (55 N. Y. Supp. 1009) reversing a judgment in favor of plaintiff, plaintiff appeals. Reversed.

Gray and Landon, JJ., dissenting.

Henry B. Gayley and Matthew C. Fleming, for appellant.

Albert I. Sire, for respondent.

O'BRIEN, J.

This was an action to foreclose a mechanic's lien filed by the plaintiff on the hotel premises known as the ‘Stuart House,’ situated on the northeast corner of Forty-First street and Broadway, in the city of New York, of which the defendant was the owner. On the 17th of December, 1895, the defendant, by a written lease, demised these premises to a tenant for the term of 10 years from that date. The rent reserved was $32,000 for the first year, which was to be increased at the rate of $1,000 per year for each of the four years following, and for the remaining five years of the term it was fixed at $37,000 per year, payable in equal monthly payments on the 1st day of every month during the term. This lease contains numerous covenants, and among them was a provision to the effect that the tenant should make the necessary repairs at his own cost, and any improvements so made should belong to the owner when the lease was terminated. It was provided that, in case of default in any of these covenants, whether for the payment of rent or otherwise, it should be lawful for the landlord to re-enter and repossess and enjoy the premises, the tenant expressly waiving the service of any notice for that purpose, or any legal process for the recovery of the possession; and, in case of re-entry by the owner for the nonpayment of rent, he might elect to hold the tenant liable for the sum of $15,000 as liquidated damages, and to secure the landlord in this respect it was provided that the tenant should deposit with him the sum of $5,000 in cash, to be held as security for the faithful performance of all the covenants and conditions contained in the lease; and in case of default in the performance of any of them the landlord was permitted to retain that sum, to be applied by him on the liquidated damages fixed by the terms of the lease. The demised premises were to be used by the tenant for a first-class hotel and restaurant. The tenant went into possession of the premises shortly after the execution of the lease. On the 6th of May, 1896, following the execution of the lease, the tenant entered into a contract with the plaintiff to make extensive repairs, alterations, and improvements in the house. Under this contract the plaintiff was to panel the walls of the reception room from baseboard to cornice with Lincrusta Walton; to panel off the two ceilings with a border of relief ornament close to cornice; to paint the walls and ceilings five coats, and the woodwork in three coats of oil; to put up new picture molding; to cut out the wall of south side of the room, and supply and put in place white wood columns, pilasters, bases, and cornices with composition ornaments, and to paint the same like the woodwork of the room; to take out the dumb waiter, seal up the floor, and make good plaster work; to touch up with gold leaf all relief ornaments on screen at the entrance of the room and high lights of ceiling ornament. The main hall was to be painted in parti-colors in oil. From that point to the top of the house, including the seventh floor, the walls and ceilings of the rooms were to be painted and decorated in an expensive style. The woodwork was to be painted three coats in oil, and in some of the upper rooms the walls were to be hung with paper selected for that purpose. Without describing the contemplated improvements in further detail, it will be sufficient to say that the contract provided for overhauling, painting, and decorating the whole of the interior of the hotel from top to bottom in an attractive and expensive style, both as to workmanship and material. The contract provided that the plaintiff should be paid for the work and materials embraced in the contract the sum of $8,023.82. Immediately after the execution of this contract,the plaintiff entered upon its performance, and fully performed the same. The work was carried on almost continuously from that date until the middle of October following, when the same was completed to the satisfaction of the tenant, and accepted by him. But the tenant failed to pay to the plaintiff the sum specified in the contract, or any part thereof, and within the time allowed by statute the plaintiff filed a lien against the premises, a copy of which was served upon the defendant, the owner. The plaintiff acquired a lien upon the property benefited under the first section of the act for the better security of mechanics, laborers, and others who perform labor or furnish materials for buildings, providing the work was performed and the materials furnished with the consent of the owner. Laws 1885, § 1, c. 342, as amended by Laws 1895, c. 673. By the twenty-fifth section the act is declared to be a remedial statute, to be construed liberally to secure the beneficial interests and purposes thereof, and a substantial compliance with its provisions is declared to be sufficient for the validity of the lien. On the trial of the action before the court at special term it was found, as matter of fact, that the labor was performed and the materials furnished with the consent of the defendant, and a judgment declaring the lien and directing the foreclosure of the same was entered upon this decision. But this judgment has been reversed by the learned court below on appeal, and the plaintiff has appealed to this court.

The only question involved in the controversy was whether the defendant had consented to the improvement upon his property. That question was essentially one of fact, and it may be of some importance here to mention, what appears from the record, that in about two months after these improvements were completed-or, to be accurate, in the month of December, 1896-the defendant re-entered and repossessed himself of the demised premises, and thus his property has had the entire benefit of the expenditure made by the plaintiff thereon, and the defendant is now in the enjoyment thereof. How or in what particular manner the defendant regained possession in so short a time after the execution of the lease for 10 years the record does not disclose, but we may assume that it was in consequence of a default by the tenant either in the payment of the monthly installments of rent or for a failure to observe some of the other stringent covenants in the lease. However that may be, the general fact appears that within two months from the time the plaintiff had completed an expenditure for labor and materials of over $8,000 upon the defendant's property, he resumed the possession and enjoyment of the same. The learned court below doubtless had the power to reverse the judgment of the trial court upon the facts, but it has not done so, or at least no statement to that effect appears in the body of the order; and under the provisions of section 1338 of the Code this court must presume that the reversal was upon a question of law. Prior to the revision of the constitution which went into effect in 1895, and the amendment to this section of the Code which followed, this court had the power, when there was a reversal below upon the facts, to review the decision; but by the amendment to the Code referred to that power was abolished, and the jurisdiction of this court has been limited to the review of questions of law; and, since our jurisdiction now depends, in cases of this character, upon the form of the order, a compliance with its provisions is more important than ever. The question of law upon which the learned counsel for the defendant mainly relies in order to sustain the reversal is that the finding of the learned trial court to the effect that the improvement upon the building was...