Spruck v. McRoberts

• Citation: 34 N.E. 896,139 N.Y. 193
• Parties: SPRUCK v. McROBERTS et al.
• Decision Date: 03 October 1893
• Court: New York Court of Appeals

139 N.Y. 193

34 N.E. 896

SPRUCK

v.McROBERTS et al.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from supreme court, general term, second department.

Action by Henry Spruck against Hugh McRoberts and others to foreclose a mechanic's lien. From a judgment of the general term (19 N. Y. Supp. 128) affirming a judgment in plaintiff's favor, entered on the report of a referee, defendant McRoberts appeals. Reversed.

William M. Mullen, for appellant.

Oscar Frisbie, for respondent.

O'BRIEN, J.

The plaintiff recovered a judgment directing the sale of certain lands of the defendant McRoberts to satisfy a mechanic's lien, which it was claimed the plaintiff had under the provisions of chapter 342 of the Laws of 1885. The notice of the lien was filed in the proper county on the 11th day of April, 1889, against one George Tarter and his wife, as the owners of the land, and the defendant McRoberts is not referred to therein as owner or otherwise. The plaintiff entered into a contract on the 13th of November, 1888, with Tarter and his wife, for the erection of an hotel building on the lands, at a cost of over $6,000, and was paid by them from time to time, during the progress of the work, and in pursuance of the contract, about $5,000. The defendant is in fact the owner of the land, and was when the contract was made and the building erected; but some time before the contract was made, the Tarters went into the actual possession, under title hostile and adverse to the defendant, and kept their possession and assumed to be the owners, in hostility to the defendant, until the 2d day of January, 1890, when they were compelled to surrender the premises to the defendant, under a judgment and execution in an action of ejectment. This action was commenced against the Tarters, their grantors and others, on the 27th day of March, 1889, by the service of a summons and complaint, and the filing thereof, with a notice of the pendency of the action in the county clerk's office of the proper county. The plaintiff by his contract was to complete the building on or before May 1, 1889, and it was completed substantially according to the contract, a considerable part of the work having been done after the defendant had brought the action to recover the land upon which the structure was being erected. There can be no doubt upon the finding that the plaintiff entered into the contract and erected the building upon the faith of the title and responsibility of the Tarters, and trusted to them and their title for payment of his compensation. The referee has found substantially that the plaintiff, before entering into the contract, was notified by different persons that the land belonged to the defendant, and to have nothing to do with the erection of the building, to which he replied, in substance, that he was willing to take his chances; but the force of these facts was evidently much impaired in the mind of the learned referee by the circumstance, which he finds, that this notice was not given in pursuance of any authority or request from the defendant himself.One of the persons who thus warned the plaintiff of the danger of making any expenditure upon the land on the strength of Tarter's title was the attorney of record for the defendant in this action, and it is a fair inference from the whole record that he acted for the defendant, or at least obtained the information from him. But, however that may be, the important fact cannot be ignored that the plaintiff, before he made any contract to build, and before he incurred any expense, was fully informed, not only of these statements, but, by his own inquiries and investigations, as to the condition of the title; and that, with full knowledge of all the facts, he deliberately elected to enter upon and perform the contract for the construction of the building upon the faith of a title which proved to be utterly invalid, and also in reliance upon the pecuniary responsibility of parties who failed to pay the contract price in full. The record does not disclose the slightest ground for supposing that the plaintiff's conduct in this respect was influenced in any degree by any word, act, or omission of the defendant, and, so far as the plaintiff seeks to sustain the judgment upon general principles of equity these considerations are important.

The statute which gives to a contractor, mechanic, or material man a lien upon the lands of another created a remedy in such cases which was unknown to the common law, and, while it must receive a liberal construction to secure the beneficial purposes which the legislature had in view, it cannot be extended to a state of facts not fairly within its general scope and purview. Spencer v. Barnett, 35 N. Y. 94; Tiley v. Hotel Co., 9 Hun, 424. The statutory incumbrance is imposed upon real estate in such cases only when the work is performed or materials furnished in pursuance of some contract with the owner, who is sought to be charged, or whose interest is to be affected, or when his consent is in some way established. It is not claimed that the defendant ever made any contract with any one that connects him in any way with the work or material that the plaitiff put upon the land. The judgment proceeded,and has thus far...