Opinion
January, 1905.
Fluegelman Bach, for appellant.
Lindsay, Kremer, Kalish Palmer (Eugene G. Kremer, of counsel), for respondent.
According to his complaint and his evidence the plaintiff, a master painter, did some work and furnished some materials in four apartments at 471 Central Park West, under an employment from one Tribelhorn, the lessee of the apartment-houses 471, 472 and 473 on that avenue. The work was done before the leases were signed by the tenants whom he had orders to satisfy; indeed they would not sign until the washing, patching and tinting were done; when the bill was presented the lessee paid a part, later another and a third check came back. Without further effort to collect his money, so far as shown, certainly he did not serve Tribelhorn in this action, the plaintiff sought to bring about payment from the owner, the defendant, by filing notice of a mechanics' lien and alleging that what was done and furnished was with her knowledge and consent. To evidence that consent the plaintiff testified he met Mrs. Warner in her apartment at No. 473; that she said "good morning," and he said "good morning;" his foreman testified that on his going to work in her apartment at 473 the day she was leaving the lady said "I hope you will do me a good job; I hope you will do the same work as you do in the other houses; I hope you will do the same kind of work in all three houses," and that she gave him presents (the defendant said they were things she had no time to pack), and his lawyer testified that when he served the summons and insinuated a settlement to save a suit, Mrs. Warner replied she had an arrangement with Mr. Tribelhorn and was amply secured against any claim that would be made against that property or against herself.
"It is here urged that those facts when taken together are sufficient to establish at least an implied consent on the part of the defendant Warner." Happily, however, it is well settled that mere acquiescence with knowledge is not sufficient evidence of the consent which the statute requires, the consent which is not a vacant or neutral attitude, but is affirmative in its nature. De Klyn v. Gould, 165 N.Y. 282. This is indicated in the case upon which the appellant relies (Nat. Wall Paper Co. v. Sire, 163 N.Y. 122), wherein knowledge was shown, not as here by a scintilla of inference, but by proof that the owner was present during the entire progress of the work, was familiar with its every detail, of which he repeatedly expressed his admiration and the lasting benefit of which he was soon to enjoy. The plaintiff helplessly failed to make out his cause of action and the judgment should be affirmed.
SCOTT and DAVIS, JJ., concur.
Judgment affirmed, with costs.