
    Richard A. Byrne, Appellant, v. William L. Beckman and Others, Respondents.
    Third Department,
    November 11, 1915.
    Equity — landlord and tenant — suit against landlord to recover moneys advanced to tenant for erection of buildings — agreement of landlord to repay portion of expense of erecting building — expense not contemplated by original agreement — refusal to permit renewal of liquor tax certificate—judgment — entry of judgment as security pending further hearing.
    The defendant leased certain lands on which the lessees covenanted to erect a hotel building according to plans and specifications to be approved by the lessor, and to maintain and operate the same as a hotel. The lessees further covenanted to keep up the insurance, to pay taxes, to. obey the Excise Law and not to assign the lease without consent. The lessor, on her part, agreed to repay one-third of the value of the buildings at the termination of the lease, provided the lessees had observed all the terms thereof, and was also entitled to terminate the lease should the lessees default in rent or taxes, or in the performance of any of the agreements, or if any levy should be made on the premises under any attachment or judgment. The plaintiff, from time to time, advanced moneys to the lessees for the construction of the hotel which, as actually erected, was considerably larger and more expensive than that originally contemplated. The plaintiff sues on the theory that the defendant lessor, having knowledge of the advances, was equitably bound to contribute to the repayment of the loan made by the plaintiff to the lessees; but there is no claim that she ever made any agreement to that effect with the plaintiff or any other party, It appeared that mechanics’ liens were filed against the property and suits of foreclosure were pending, and that, the lessees being in default in payment of taxes and insurance, the lessor elected to terminate the lease.
    On all the evidence, held, that the plaintiff had not established an equitable right against the defendant lessor, and that a judgment in her favor should be affirmed.
    Assuming that the lessor was required to consent to the renewal of a liquor tax certificate for the premises, it was an independent obligation, and her refusal to allow such renewal did not excuse the lessees from paying taxes, and, hence, did not constitute a partial eviction.
    Although decision was originally given for the plaintiff, and he was allowed to enter judgment thereon as security only, pending a further hearing of issues raised by the defendant, the judgment was limited to the purpose stated, and the plaintiff did not gain a right to greater relief by accepting the same.
    Kellogg, J., dissented.
    
      Appeal by the plaintiff, Richard A. Byrne, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Franklin upon the decision of the court after a trial before the court without a jury, and also an appeal from the intermediate orders made in the action.
    
      Kellas, Genaway & Kellas [John P. Kellas of counsel], for the appellant.
    
      Weeds, Conway & Cotter [Frank E. Smith and Thomas B. Cotter of counsel], for the respondents.
   Woodward, J.:

On the 11th day of September, 1911, Anna L. Stevenson, one of the defendants, entered into a lease with William L. Beck-man and Arabella C. Beckman, by the terms of which the Beckmans were given possession of the premises involved in this action for a term of five years, with a privilege of renewing the same for a second term of like length. The rental for the first three years was to be at the rate of $300 per year, increased to $400 for the two succeeding years of the term, and $600 per year for the next five years, in the event of a renewal, Mrs. Stevenson reserving board and the use of one of the cottages for the summer season. The lessees covenanted to pay the rent; to erect at their own expense- a hotel building seventy-two by thirty-six feet, and other buildings in accordance with plans and specifications to be approved by the lessor, and to furnish, equip, maintain and operate the same as a first class summer hotel; to keep up .insurance; to pay taxes;' to keep in repair; to obey the Excise Law, and not to assign without consent. The lessor on her part promised to pay the lessees at the expiration of the lease, provided lessees “shall have observed all the terms thereof,” “one-third of the then value of the buildings.” The lease likewise provided that if the lessees defaulted in their rent or taxes, or in the performance of any agreement, or became insolvent, or if any levy be made on the premises under any attachment or judgment, the latter might terminate the lease. Subsequent to the making of this lease the plaintiff,' who had been a summer guest of the Beckmans, entered into an agreement with the latter by which he undertook to advance the money for the construction of the buildings contemplated in the lease. It appears from the pleadings and the evidence that the plaintiff continued to make advancements from time to time until buildings considerably larger and more expensive than had been originally contemplated were erected upon the land of the defendant Mrs. Stevenson, and the theory of the action is that these advancements having been made with the knowledge and consent of the latter, she is equitably bound to contribute to the repayment of the loans thus made for the benefit of her property. There is no claim that there was ever any contract or agreement on the part of Mrs. Stevenson with the plaintiff, or with the codefendants, that she would make such repayments, and it is conceded that the plaintiff, in the year 1912, took an assignment of the lease above mentioned as security for his investment; but it is urged that because the defendant Mrs. Stevenson has had the advantage of the investment she is bound to pay for the same by reimbursing the plaintiff for the moneys which he loaned to the Beckmans.

It appears from the record 'that during the process of constructing the buildings the Beckmans were unable to meet their obligations, even with the help of the plaintiff, and that mechanics’ liens were filed against Mrs. Stevenson’s property aggregating over $3,000, for which foreclosure actions were pending. The answer sets this up as one of the defenses, together with an allegation that the Beckmans were in default in the payment of taxes and insurance and otherwise under the lease, and that she had elected to terminate the same. The case came on for trial in December, 1913, and was tried at the same time and in connection with the action to foreclose the mechanics’ liens on the property. The cause was submitted and resulted in a decision in favor of the plaintiff, accompanied by an opinion of the trial court. The defendants asked to be heard upon the settlement of the decision, and the decision which had been signed was withheld from filing. Subsequently plaintiff’s attorney gave notice to the defendants that the decision would be submitted to the court for confirmation on the 7th day of February, 1914. On that day the parties came before the court, and the defendant Mrs. Stevenson asked to reopen the case and to be permitted to give evidence in support of her contention that she was entitled to maintain an action in ejectment because of the default of the Beckmans in paying taxes, etc. This request was granted, the- court in the meantime permitting the filing of the original decision and the entry of judgment thereon as security only, which limitation upon the judgment was included in the judgment as entered, and which the plaintiff now asks to have eliminated from the original judgment, making it absolute, this upon an appeal from a motion, duly denied, asking to have the same stricken from the judgment on the ground that it was not in conformity to the decision.

The result of the opening of the case and permitting new evidence was that the court reached the conclusion that the defendant Mrs. Stevenson was entitled to maintain an action in ejectment by reason of default in the payment of rent, and the judgment entered is appealed from, together with the order above mentioned. The case does not contain all of the evidence, except that bearing on the question of the Beckmans’ default in the payment of taxes and in the payment of insurance.. The questions of fact, other than these, are not open for review here, and as to these we think the weight of evidence is with the respondents. This court will consider the case from the standpoint of the findings as made, and we see no escape from the conclusion that the judgment should be affirmed.

The contention of the plaintiff that the defendant Mrs. Stevenson was guilty of a partial eviction of the Beckmans, by her refusal to sign a consent necessary to the procuring of a renewal of the liquor tax certificate, and that such constructive eviction operated to prevent the Beckmans from paying their taxes, thus bringing about the default on which the present judgment rests, is rather strained. There is no contention that the Beckmans were insolvent, or that they could, not have paid the taxes at the time they were due, and the covenant to pay taxes was not contingent upon the defendant Mrs. Stevenson granting a consent for a liquor tax certificate. We assume that it was contemplated by the lease that Mrs. Stevenson should give her consent to the renewal of the liquor tax certificate, but it was an independent obligation, and did not relieve the Beckmans from the obligation of paying the taxes. The real difficulty in the case grows out of the fact that the learned court, upon the trial, originally made a decision in conformity with the plaintiff’s contention. The decision was not filed, however, and we are of the opinion that the court was in control of the decision and that the permission to enter the judgment, as security to the plaintiff during the further hearing, was a favor to the plaintiff, and that he gained no right to greater relief by accepting the judgment for the limited purpose and with the condition annexed. The theory of the case presented a long stretch of the equitable arm of the court at best; the contention that the plaintiff, by loaning money to the Beckmans to permit them to carry out their covenants with the defendant Mrs. Stevenson, and by putting in more than the covenant called for, had thus builded up an equitable claim as against Mrs. Stevenson, after having involved her in mechanics’ liens to the extent of more than $3,000, is going a long way about to approximate justice to say the least, and we should be reluctant to find a- way of reaching back to the original decision in a case of this character. It is true, of course, that the plaintiff appealed from the order refusing to strike out the added clause to the judgment, but he had the advantage of the judgment for security, so far as it could be of any advantage, and the present judgment seems to meet the requirements of the case. All that intervened did not operate to prejudice any legitimate right of the plaintiff, and the judgment and orders appealed from should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting.

Judgment amended by providing that the redemption mentioned in section 5 of the judgment may be made within thirty days from the time the judgment is entered on this decision, and as so amended judgment and orders affirmed, with costs.  