Rapid Fireproof Door Co. v. Largo Corp., Inc.

• Decision Date: 16 November 1926
• Citation: 154 N.E. 531,243 N.Y. 482
• Parties: RAPID FIREPROOF DOOR CO., Inc., v. LARGO CORPORATION, Inc.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 482

154 N.E. 531

RAPID FIREPROOF DOOR CO., Inc.,

v.LARGO CORPORATION, Inc.

Court of Appeals of New York.

Nov. 16, 1926.

Action by the Rapid Fireproof Door Company, Inc., against the Largo Corporation, Inc., and another. From a judgment of the Appellate Division, Second Department, reversing a decree of the Special Term for plaintiff (216 App. Div. 395, 215 N. Y. S. 288), plaintiff appeals.

Judgment of the Appellate Division reversed, and that of the Special Term affirmed.Appeal from Supreme Court, Appellate Division, Second department.

Hyman J. Reit and Seth V. Elting, both of New York City, for appellant.

Edward A. Brown, of New York City, for respondent.

LEHMAN, J.

The plaintiff in this action seeks to establish and foreclose a mechanic's lien upon real property owned by the defendant, Largo Corporation, for materials which have been used by the defendant in the erection of a building. A judgment in favor of the plaintiff has been reversed by the Appellate Division and the complaint dismissed. That court has held that the plaintiff did not furnish these materials ‘with the consent or at the request of the owner thereof [of the premises],’ and that consequently there is no basis for a claim of statutory lien. Lien Law (Cons. Laws, c. 33), § 3.

[1][2] The case presents a somewhat unusual situation. On the 2d day of May, 1922, the plaintiff entered into a contract with the Norab Realty Company, Inc., to furnish and install certain materials in a theater which the Norab Realty Company was erecting or was about to erect on the premises upon which the plaintiff now claims a lien. The plaintiff proceeded to furnish naterials and performed labor under its contract. On the 7th day of July, 1922, it filed a notice of lien upon the real property of the Norab Realty Company. The notice of lien shows that at that time the plaintiff had not fully completed its contract. Some material called for by the contract had not yet been furnished, and some labor had not yet been performed. It appears from the testimony produced at the trial that part of the material furnished by the plaintiff under its contract had been actually installed in and attached to the building, while part was still lying on the ground. In September, 1923, two actions were begun to foreclose mortgages upon the real property. This plaintiff was made a party defendant in each action, and filed its answer therein, but the answer was stricken out upon motion, and judgment of foreclosure entered. The judgment constituted an adjudication that the present plaintiff had no lien upon the real property which was not inferior to the mortgages under foreclosure. The title of the defendant, Largo Corporations, is derived from a sale held pursuant to the judgment of foreclosure in these actions. That title is undoubtedly free from any lien for materials previously furnished by the plaintiff with the consent or at the request of a previous owner whose title was subject to the mortgages which have been foreclosed; but the title of the new owner may obviously be subjected to a lien thereafter, if as such owner it, in turn, by consent or request, takes part in subsequent improvement of its property.

In the present case the defendant, having purchased real property with an unfinished building, proceeded to complete the building. The materials delivered and furnished by the plaintiff upon the premises, pursuant to contract with the earlier owner, but which had not been attached to the building, were used by the defendant in this work. The plaintiff thereupon filed a new notice of lien for the alleged value of the materials so used by the defendant in the improvement of its building. The action has been brought to foreclose such lien.

[3] Undoubtedly the plaintiff originally furnished the materials, included in this new notice of lien, under its contract with the Norab Realty Company, Inc., for the improvement of the property, and the earlier notice of lien upon the real property of that corporation included the value of the materials for which plaintiff now seeks payment. The defendant who now owns the property had nothing to do with the original contract for the improvement of the building, and is not responsible for the value of any labor performed or materials furnished pursuant thereto. The plaintiff does not claim that it has delivered any materials upon the premises since the original contract was terminated and this defendant became the owner of the property. The judgment of dismissal determines that, though the defendant has used the materials furnished by the plaintiff for the improvement of the premises, they were not furnished with this defendant's consent or at its request, and therefore the plaintiff has no lien on defendant's property.

[4][5] This conclusion is undoubtedly sound, if the plaintiff no longer had any title to the materials at the time the defendant used them in the completion of its building. It is not claimed that the plaintiff lost title to the materials merely by bringing them upon the premises with the purpose of thereafter using them in the improvement of real property. These materials lost their character of personal property, and the plaintiff parted with his title to them, only if they became actually or constructively attached to the real property. Though the defendant purchased the real property covered by the mortgages under foreclosure, and took title free from any subordinate lien thereon, the defendant obtained no title to personal property which happened to be on the premises and which was not covered by the mortgages. Title to the materials not at that time physically attached to the real property was not changed by the sale under foreclosure unless the previous notice of lien had resulted in some manner in a constructive attachment. The first question we must consider upon this appeal is whether the filing of lien had such effect.

[6][7] The statute was intended to give contractors who improved real property and thereby added to its value with the consent or at the request of the owner an interest in the property improved. Schaghticoke Powder Co. v. Greenwich & J. R. Co., 183 N. Y. 306, 76 N. E. 153, 2 L. R. A. (N. S.) 228, 111 Am. St....