
    Chamberlin v. McCarthy et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 18, 1891.)
    Injunction—Improvements Made by Tenants—Rights of Landlord.
    Laws N. Y. 1885, c. 342, § 1, provides that a mechanic shall have a lien only on the “interest in land” of the party for whom work is done, “whether owner in fee, or of a less estate, or whether lessee for a term of years, ” etc. Plaintiff fitted certain buildings of defendant, in the possession of leasehold tenants, with steam boilers and piping,, and then claimed a lien, under the statute, on the tenant’s estate in the premises. The tenants abandoned and surrendered their lease, and the defendant entered. Held, that an injunction should not be granted to restrain the defendant owner of the fee from using the said boilers and pipes, because, if fixtures, they were not covered by the lien, and, if part of the realty, they were rightfully in his possession as landlord.
    Appeal from special term, Rensselaer county.
    Action by Lee Chamberlin against Charles McCarthy and others to foreclose a mechanic’s lien. The complaint alleges that the defendant McCarthy rented the premises described in the lien to William B. Brind and H. S. Pashkian, who at once entered upon the said premises as tenants of said McCarthy, and the said Brind & Pashkian made a verbal contract with the plaintiff that he should furnish to them certain steam-fittings,—boiler, radiators, iron pipes, valves, manifolds, etc.,—and do certain plumbing and steam-fitting in said building, owned by said McCarthy. In pursuance of which contract the plaintiff did furnish to said Brind & Pashkian certain plumbing and steam-fittings, and placed in said building an iron boiler and certain iron pipes, valves, fittings, manifolds, radiators, and other plumbing materials, to the value of $577.37, which was the agreed price between the said Brind & Pashkian and the plaintiff. That said McCarthy had rented said premises to said Brind & Pashkian for them to.carry on the business of a Turkish bath in said building, and the said Brind & Pashkian procured the plaintiff to do the said plumbing and steam-fitting, and to furnish them the said boiler, valves, manifolds, radiators, iron pipes, etc., and place the same in position in said building, to enable them to carry on the business of a Turkish bath. That upon the completion of the work, and before 90 days had expired, and on 18th of March, 1889, the plaintiff caused to be made and perfected a mechanic’s lien against the interest of said Brind & Pashkian in said premises, and caused it to be filed in Rensselaer county clerk’s office on March 20, 1889. The answer of the defendant McCarthy sets up, among other things, that the iron boiler, valves, manifolds, radiators, iron pipes, and steam-fittings placed in McCarthy’s premises, as aforesaid, are fixtures, and a part of the freehold, and thus belong to said defendant McCarthy; and that the defendants Brind & Pashkian abandoned their lease before the commencement of this action, and that the articles furnished to the defendants Brind & Pashkian by the plaintiff reverted to said McCarthy. The defendant McCarthy appeals from an interlocutory injunction order restraining him from the use of the engines and boilers fitted up by the plaintiff in the premises in question.
    Argued before Learned, P. J„ and Landon and Mayiiam, JJ.
    
      Thomas S. Fagan, for appellant. Rufus M. Townsend, for respondent.
   Learned, P. J.

We think this injunction should- not stand. McCarthy owned the land, and leased it to Brind & Pashkian. They purchased of plaintiff certain boilers and steam-fittings and the like, and had them put in the buildings. For these purchases they owe. The plaintiff filed a mechanic’s lien against the interest of Brind & Pashkian in the premises, and he now brings this action to foreclose. It appears that Brind & Pashkian abandoned and surrendered their lease, and McCarthy, as owner, took possession, and that his present tenants are using the boiler and fittings and the like. The plaintiff fears that these things will be injured by such use, and therefore obtained an injunction forbidding McCarthy to use them until the decision of the action. The effect of the filing of the notice of lien, assuming it to be valid, is to create a lien on the interest which Brind & Pashkian had in the premises. Whether this boiler and these fittings became a part of the property of the owner, or whether they were such fixtures that Brind & Pashkian could remove them at the end of their term, we need not decide. We may assume that if the plaintiff had, by contract with McCarthy, put in these fixtures, he would have had a lien on McCarthy’s interest. But a reference to chapter 342, Laws 1885, § 1, will show that the lien is only on the interest in the land of the person for whom the work is done, either directly or through a contractor. The language is: “Whether owner in fee, or of a less estate, or whether a lessee for a term of years, ” etc. Now, while it may be that, after the filing of the notice of the lien, the lessee could not convey the leasehold estate free from the lien, yet it is by no means clear that the landlord could not re-enter for non-payment of rent. However this may be, there is no propriety in preventing the owner of the fee from using the property which has thus been attached to his land. If the tenants had lawfully removed these fixtures, then they would not have-been affected by the notice of lien, because that is a lien on the interest in land; and, if these fixtures are rightfully removable, then they are not part of the land. On the other hand, if these became a part of the land, (as plaintiff seems to claim under Ward v. Kilpatrick, 85 N. Y. 413,) then McCarthy, as the landlord, is rightfully in possession, and cannot properly be prevented from using his property. The plaintiff had no lien except on the leasehold interest of Brind & Pashkian. Whether that has ceased or not is not shown. At any rate, the mechanic’s lien cannot operate to increase the rights which the lessee had against the lessor. The injunction order is reversed, with $10 costs and printing disbursements, and motion for injunction denied, with $10 costs. All concur.  