Garber v. Spivak

4 Citing cases

  1. Gates Co., Inc. v. Nat. Fair Exposition Assn

    172 App. Div. 581 (N.Y. App. Div. 1916)   Cited 3 times

    This contention rests upon testimony that on two or three different occasions the president of the lessor (and possibly one of its other officers) was seen by workmen driving or walking past the place where they were working. That testimony is insufficient to sustain the contentions. ( Lloyd v. Kilpatrick, 71 Misc. Rep. 19; Rice v. Culver, 172 N.Y. 60; De Klyn v. Gould, 165 id. 282; Garber v. Spivak, 65 Misc. Rep. 37.) In addition, the consent necessary to authorize the lessee to proceed with the proposed improvements was to be in writing, which made affirmative action on the part of the lessor necessary, and this requirement is not met or satisfied by proof of knowledge of some of the officers of the lessor that work was being done upon the property.

  2. Falk v. Krumm

    39 Misc. 2d 448 (N.Y. Sup. Ct. 1963)   Cited 6 times
    In Falk v. Krumm, 39 Misc.2d 448, 240 N.Y.S.2d 653, aff'd 22 A.D.2d 911, 255 N.Y.S.2d 569 (Sup.Ct. Nassau County, 1963), the court held that no agency is implied as between husband and wife from the mere fact of marriage.

    "No agency is to be implied as between husband and wife from the mere fact of marriage." ( Moses v. Carver, 164 Misc. 204, 211, affd. 254 App. Div. 402; Garber v. Spivak, 114 N.Y.S. 762.) It is also found that the plaintiff was on notice as to the situation and that he proceeded at his peril in conducting negotiations upon terms not previously expressly authorized by the wife.

  3. Eisenson Electric Service Co. v. Wien

    30 Misc. 2d 926 (N.Y. Sup. Ct. 1961)   Cited 6 times
    In Eisenson Elec. Serv. Co. v. Wien (30 Misc.2d 926, 932-933) it was noted that the "`consent' contemplated by the statute is not the consent given to the tenant in a lease but, in effect, is a consent given to the materialman.

    As noted in Jones v. Manning (53 Hun 631, opinion in 6 N.Y.S. 338, 340) and as succinctly stated in Sager v. Renwick Park Traffic Assn. ( supra, p. 368): "It is a holding out of the owner as acquiescing in the giving of credit which is at the foundation of the right to a lien against the owner of the fee, and where the contract is made with a tenant in possession under a lease having no connection whatever with the owner of the fee, it cannot reasonably be contended that the latter is either morally or legally bound to compensate the lienors." (See, also, Delany Co. v. Duvoli, supra; Garber v. Spivak, 65 Misc. 37, 38.) Here, there was no "holding out" or "giving of credit" by the owner to the lienors, either by conduct or the express terms of the leases.

  4. Lloyd v. Kilpatrick

    71 Misc. 19 (N.Y. Misc. 1911)   Cited 6 times

    There must be something more. Consent is not a vacant or neutral attitude in respect of a question of such material interest to the property owner. It is affirmative in its nature." See also Garber v. Spivak, 65 Misc. 37, and Seklir v. Krizer, 48 id. 25. The evidence in this case, while it might possibly show knowledge on the part of the defendant Henry Ducasse Co., fails to show some affirmative act respecting the particular improvement from which its knowledge and consent may be properly inferred.