The New York herald., 1869-04-15
Couar or COMMON pLeAs-aExsaAl Term.

Mechanics Lien-When 1t MAY Attach TO tho
Landlords Property for Repairs Made by
the Tenant.
Before Judges Daily Brady and Barrett.
Vnra Cleye, appellant, Us Ab6ctt, Respondents
This appeal was heard on the referees report and
the pleadings without any Of the evidence given on
the trial before the referee Tho pleadings show
that the action was commence to foreclose
mechanics lien on the hotel the southeast corner
OF Fortieth street and sixth avenue, for woSk and
materials furnished by the painHT for repairs, by
direction OF the defendant, who was then the owner
of the property The value Of the repairs Is claimed
to be about $500. The plaintiff fled notice Of fis
lien, and shortly afterwards this action was CON-
menccd 10 enforce said clam against the deIendant
as owner aud his interest ia said property.
The defendant, by answer, denied that he en-
pioyed the plaintiff, but admitted that the
defendent was tine owner thereof, and alleged that
prior to the commencement OF said work he leased
SAID property to one DE Lavalette for term of ten
TO do ali the said repairs ut her own expense and
that said employment, work and materials claimed
by the plaintiT were done at the instance anu re-
quest OF said De Lavalete pursuant to said lease,
and that she alone was liable therefor After trlai
before referee In his report he found that the de
fendant Abbatt was tue owner OF the premises, and
that such he rented the same to De Lavaete for
term Of years. and In said lease she cOyenanted TO
make certain specified repairs. and SAID defendant
such repairs and that De Lavactte then hired plain
ttn to make slch repairs ana he did make them.
As conclusions OF law. he found that the said
AbDatt was not responsible for the same and that
no lien exists against said premises therefor ana
the defendant was entitled TO jud2ment with COSTS
The lien was therefore cancelled on the record The
tenant, De Lavalette was not made party to these
proceedings, although named as lessee in the no.
tlces Of lien. The plaintT excepted to tlie con-
clusions OF decided by tine referee and the judg
ment entered thereon, and now ASKS for the relief in
this court which he demanded III his complaint and
which he claims the referees findings Of TACT enttle
him.. First-That by the terms Of the lease the work
done under Il was In fact done for ADDatG aud was
for hn benefit, and that DE Lavaette was his agent
and contractor for such WORK. Second--rnat the
personal liability Of Abbatt was to the amount OF the
fair value or the repairs specihed and called Tor by
the lease, and that ms interest IN the property was
liable for such amount, or at least to the amount 0
$500 specified IN the lease. That there was no cain
or payment TO the plaintiff or TO tho tenant OF The
$500 named In the lease. Tnird-That the lien was
valid as against the tenants interest In said pro-
perty. That the judgment shoul. be reversed on
this ground, II on no other, for the referee had
found that the repairs were made for the tenant and
had decided as matter OF law that no lien exists
the premises for such work. Fourth--1har on the
facts found this Court can ana should on this APP
peal make a decree according to the law without
sending the Case back to the referee Tor new
trial. TO n. Y, 400; 2S do, IL, 5o9.)
The decision OF the reieree'was susta ned and the
judgment affirmed. X. ). Guernsey Ior appellant;
4. A. Paddock for respondent