
    KNAPP against BROWN.
    
      Court of Appeals,
    
    
      March, 1871.
    Waiver op Appeal. — Waiver op Right to Dismissal.—Mechanic’s Liem.—Interest op Lessor.—Covenant, por Repairs.
    Collecting by execution the amount of a-judgment, is a waiver of an' appeal prosecuted to procure a reversal of the judgment for alleged error.
    
    
      The cases of Dyett v. Pendleton, 8 Cow., 325, and Clowes v. Dickenson, Id., 328, distinguished.
    Proposing amendments to the case made on an appeal, is not a waiver of the right to move for a dismissal of the appeal.
    Under the mechanic’s lien law, relative to the city of New York, the interest of an owner who leases land and buildings with a covenant binding the lessee to make improvements, and leave them on the premises at the expiration of the term, is not bound by a lien filed for work and materials furnished to the lessee.
    The act does not authorize a lien binding the interest of any owner who does not, by himself or agent, enter into a contract for doing the work. To authorize the lien, there must be an employment by the person whose interest is to be bound; and such a lease does not constitute an employment to make the repairs covenanted for, within the meaning of the statute.
    Appeal from a judgment and order.
    This action was brought by David A. Knapp against J. Romaine Brown and Anna M. Jackson, in the New York common pleas, to foreclose a mechanic’s lien on certain buildings situated in the city of New York, of which Mrs. Jackson was the owner, and Brown the lessee. The lease under which Brown held requiring him to make certain specified alterations and repairs therein, which were to be left on the premises at the expiration of the term, he employed the plaintiff to perform the necessary labor, and furnish the materials.
    This action having been brought as above mentioned, and issue joined therein, the defendant Brown, before notice of trial, offered to allow judgment to be entered against him for one thousand and twenty dollars and thirty-one cents, which offer was refused. The case was referred, and the referee dismissed the complaint as to the defendant Mrs. Jackson, and gave judgment for the plaintiff against the defendant Brown, for nine hundred and sixty-six dollars and sixty-nine cents, but without costs, except costs and disbursements before trial. From this judgment the plaintiff appealed to the court at general term. After he had served notice of appeal, however, he issued execution and collected the amount of the judgment in his favor. To this the respondent made no objection, but accepted the proposed case and served amendments to the same. When the appeal cáme on for argument, however, the facts of the case appeared and the court thereupon dismissed the appeal, with costs. From this order dismissing the appeal, as well as from the judgment dismissing the complaint against the defendant, Mrs. Jackson, the plaintiff appealed to the court of appeals.'
    
      R. S. Guernsey, for plaintiff, appellant.
    I. Judgment should have been rendered against Mrs. Jackson for the amount found due plaintiff from Brown, since by the agreement between Mrs. Jackson and Brown, Mrs. Jackson was really the contractor for, as well as the final owner of the alterations and improvements. The word owner, as used in the statute, is the co-relative of contractor. It means the person who employs the contractor, and for whom the work is done under the contract (11 Barb., 9; Laws of 1863, ch. 500, § 14; 9 N. Y. [5 Seld.], 435; 12 Abb. Pr., 129).
    II. Brown, the tenant, agreed to make certain repairs and alterations within a specified time on the property, and although no express sum was named therefor, the lien is valid against Mrs. Jackson, the landlord (owner), “to the full and fair value of such work and materials,” &c.....“provided also,” says the statute; “ that no owner shall be required to pay a greater amount than the contract price or value 
      of the work and materials furnished (when no specific contract is made) upon his land by his contractor” (Laws of 1863, p. 1859, ch. 500, § 1).
    III. Where a person has a reversionary right to the use of buildings on which a mechanic’s lien is placed, he may be deemed an owner (12 Abb. Pr., 129 ; Code, § 114). Unless a tenant retain the right of removal at the end of his term, Tie is not the owner (19 N. Y., 234). The tenant was no more the owner of the buildings than he was of the fee—their use to him expired together.
    IY. In these proceedings judgments are in rem as well as personal (Laws of 1863, ch. 500, § 9 ; 31 N. Y., 285; 1 E. D. Smith, 670). .
    The defendant Jackson is personally liable under these agreements, and the extent of such liability is to be determined by the fair value of the repairs called for by the leases (no specified price having been named in those leases) (Laws of 1863, ch. 500, §§ 1 and 9).
    As to the point that the plaintiff by enforcing the judgment so far as in his favor, waived the right to appeal.—I. The collection of the judgment after the service of the notice of appeal, did not of itself preclude the plaintiff from proceeding with the appeal. An agreement must be shown that it was in full satisfaction of the action and appeal (Dyett v. Pendleton, 8 Cow., 325, Jones, Chancellor; Clowes v. Dickenson, 8 Cow., 328, Jones, Spencer and Golden, Senators ; Higbie v. Westlake, 14 N. Y. [4 Kern.], 281; Benkard v. Babcock, 27 How. Pr., 391).
    II. The respondent waived any right to have the appeal dismissed, by neglecting to take any action on discovering the execution had been paid, and by proceeding to argue the appeal on the merits. The respondent should have been compelled to make Ms motion of dismissal in the regular way, that appellant might show facts in his favor, such as delay in motion, waiver of irregularity. At most, the plaintiff was guilty only of an irregularity, for which his appeal could be set aside on motion and for which he might have been compelled to elect, either to enforce the judgment or proceed with the appeal; and this irregularity the respondent waived (Low v. Graydon, 14 Abb. Pr., 443; Hanley v. R. E. Bank, 4 Pike, 598; Elliott v. State Bank, Id., 437). A motion to set aside proceedings on the ground of irregularity must be made promptly, and before the moving party takes any other steps in the cause (Persse & Brooks Paper Works v. Willet, 14 Abb. Pr., 119; Low v. Graydon, Id., 443; Strong v. Strong, 4 Robt., 621; Lawrence v. Jones, 15 Abb. Pr., 110; Bowman v. Tallman, 28 How. Pr., 482).
    III. The order is erroneous in dismissing the appeal, with full costs (Williams v. Fitch, 15 Barb., 654).
    
      Cheney & Dixon, for defendant and respondent, Brown.
    
      W. L. & F. H. Cowdrey, for defendant and respondent, Mrs. Jackson.
    
      
       Compare Marvin v. Marvin, [No. 2] p. 102 of this vol.
    
    
      
      
        Laws of 1863, p. 859, ch. 500. As to Kings and Queens, see Laws of 1862, p. 947, ch. 478; as to other counties, see Laws of l854, p. 1086, ch. 402, amended by 2 Laws of 1869, p. 1355, ch 558 ; Erie, Laws of 1844, p. 451, ch. 305; Onondaga, Laws of 1864, p. 856, ch. 366, 2 Laws of 1866, p. 1693, ch. 788; Rensselaer, 1 Laws of 1866, p. 9.
    
   By the Court.—Grover, J.

The issuing of an execution by the appellant upon the judgment rendered in his favor, and.the collection of the amount thereof, after the bringing of an appeal therefrom by' him, were inconsistent with a waiver of his right further to prosecute the appeal. By the former, he enforced the judgment as a valid judgment, and secured to himself the fruits thereof as such. By the latter, he seeks wholly to reverse and annul the judgment for error therein. These acts, it is obvious, are wholly inconsistent, the one with the other, and, upon principle, it is clear that the same party cannot pursue both.

But it is not necessary to examine the question upon principle, it having been conclusively settled by this court in Bennett v. Van Syckel (18 N. Y., 481). That was an appeal by a defendant from a judgment containing various provisions, some in his favor, and some against him. The defendant, after enforcing the provisions in Ms own favor, appealed from that part of the judgment which was against Mm. The court held that, inasmuch as the provisions in favor of the defendant were so connected with that part which was against him, that the latter would not be reversed without reversing the former, he had waived his right of appeal, and the appeal was dismissed.

In the present case, the plaintiff'sought by his appeal to reverse the entire judgment, after collecting it upon execution issued by Mm. The counsel for the plaintiff relies upon Dyett v. Pendleton (8 Cow., 325) and Clowes v. Dickenson (Id., 328). These cases are not analagous to the present. In the former, the defendant against whom the judgment was rendered, sued out a writ of error thereon to the court for the correction of errors, but not having put in the requisite bail for staying the collection of the judgment, the plaintiff issued an execution, upon which the defendant gave additional security for its payment. Thereupon, the defendant in error moved for a dismissal of the writ of error. The court denied the motion, holding that the act of the defendant in error in enforcing the judgment, was no bar to the right of the plaintiff in error to prosecute his writ. Clowes •y. Dickenson was an appeal by a party from a decree in chancery, awarding him a specified sum of money; the appellant having demanded and received payment from the opposite parties, afterwards appealed from the decree. A motion to dismiss the appeal was denied by the court. This, at first view, would seem to be an authority favoring the position of the appellant in the present case, but it appears from the opinion of Spencer, Senator, that the appellant did not seek to obtain a reversal of the decree, bnt its modification, so as to award him a larger snm. It thus appears that, in any event, he was entitled to retain the snm received, and that the only question that could arise upon the appeal was whether he was not entitled to receive more. Hence, his act in demanding and receiving payment of the judgment, was not inconsistent with his appeal.

The act of the respondent, in proposing amendments to the case after the bringing of the appeal, did not waive his right to move for its dismissal. He was at liberty to have the case prepared by the plaintiff made conformable to the truth, and not obliged to take the chance of having the case heard upon an incorrect statement, should the court refuse to dismiss the appeal.

There is nothing before the court showing what items of costs were allowed to the respondent upon the adjustment, or any objection of the appellant in respect thereto, in the court below. There is, therefore, no question here in relation to the allowance of costs.

The order dismissing the appeal as to the respondent Brown, must be affirmed, with costs.

This disposes of the plaintiff’s right of recovery as to both respondents, and it is clear that he can, in no event, recover of Mrs. Jackson any amount beyond the liability of Brown to him.

But the plaintiff insists that if the complaint was erroneously dismissed by the referee as to Mrs. Jackson, he was prejudiced in failing to recover costs against her. In this position he is correct. The question as to her liability must, therefore, be examined.

From the facts found, it appears that Mrs. Jackson was the owner of the premises, and leased the same to Brown for a term of years at a specified rent, and that the latter, in addition to the payment of the rent, covenanted with her to make, at his own expense, certain specified repairs to, and alterations of, the building upon the premises, which were to be left upon the premises by him at the expiration of the term. That Brown employed the plaintiff to furnish the materials for, and to do the work, upon the repairs and alterations.

Section 1 of the act of 1863 (Lien Law for New York, Laws of 1863, p. 859, ch. 500), provides that any person who shall, thereafter, as contractor, &c., in pursuance of, or in conformity with, the terms of any contract with, or employment by the owner, or by or in accordance with the directions of the owner, or his agent, perform any labor, or furnish any materials toward the erection oí) or in altering, improving or repairing of any building or buildings in the city of Yew York, on complying with section 6 of the act, shall have a lien for the value of such labor and materials, or either, upon the house and appurtenances and lot upon which the same shall stand, to the full value of such claim or demand, and to the extent of the right, title and interest then existing, of the owner of the premises.

Mrs. Jackson was the owner of the reversion of the premises, and would be entitled to the possession of the same, upon the expiration of the term of Brown. By the construction of this section, no lien can be created upon the interest of any person as owner of the premises, except such person shall, either himself, or by his agent, enter into a contract for doing the work, either express or implied, as the lien is only authorized as against owners so contracting for or employing persons to do the work. That this is the true construction, is manifest not only by the language of the section, but by section 14 of the act. The latter section provides, that for the purposes of the act, any person or persons who may have sold or disposed of his or their lands, upon an executory contract of purchase, contingent upon the erection of buildings thereon, shall be deemed the owner, and his vendee the contractor, and said owner shall, in all respects, be subject to the provisions of the act. This provision was necessary to secure to the material men, and others, to whom such vendee might become indebted in the construction of such buildings, the benefit of a lien upon the land, but it would have been unnecessary for this purpose, had the interest of the vendor been subject to the lien created by the act in favor of such persons, by virtue of sec-, tion 1. Section 9 of the act leads to the same conclusion. That section provides that the contractor shall be personally liable to. the lienor for the whole amount of his indebtedness, and the owner to the extent of the amount due by him to his contractor. This, although confined to the personal liability of the parties, shows that to authorize the lien, there must' be an employment by the owner to create any liability against him under the act.

In the present case, there was no employment of the plaintiff by Mrs. Jackson. She was in no respect indebted to Brown for, or on account of, the work. She had conveyed to him an interest in the land, in part for the consideration of his doing the work. He alone employed the plaintiff to do the work. He was the owner, within the act, and his interest in the premises, only, is made subject to a lien by the act. This is no hardship upon the plaintiff. He, before entering into the contract, could readily have ascertained the extent of Brown’s interest in the premises, and, consequently, the adequacy of the lien, as security. Mrs. Jackson did not appeal from the judgment entered upon the report of the referee. The court could not, therefore, consider the question whether the referee ought not to have awarded her costs upon the dismissal of the ■ complaint as to her, nor is that question before this court.

The judgment affirming the judgment dismissing the complaint as to Mrs. Jackson, must be affirmed, with costs.  