
    Teresa Rice, Appellant, v. Marvin A. Culver, Respondent. Julius Friederich, Appellant, Impleaded with Others.
    
      Mechanic's-lién—facts establishing the consent of a landlord to the fitting up of ■ athletic grounds by his tenant.
    
    The owner of certain real property leased the same tó a corporation for use as an athletic field for a term, of five years with provisions for a renewal at'the end of the term! The lease provided that the lessee should have the privilege of removing from the property any and all buildings, erections, .appurtenances and improvements which it should cause to be Greeted or placed thereon an any time-before or upon the termination of the lease or renewal thereof, such buildings, erections, appurtenances and improvements'to remain at all times the property of the lessee.
    The lessee took possession of the property and proceeded to equip it for the purposes for which it was leased. The grounds were graded and sewered and supplied with water; buildings were erected and fitted with water closets and other conveniences, and a bicycle track, baseball and football grounds, grand stands, fences, etc., were constructed; all these improvements being made under contracts with the lessee alone. The owner was about the property and saw the improvements being made during all the time the work was being performed and the materials furnished and made no objection thereto. He personally applied to the water works department for the introduction of water upon the property and made suggestions or gave directions as to the moving of earth for filling purposes.
    
      ITetd, that a finding that the owner did not consent to the improvements, within the meaning of section 3 of the Mechanics’ Lien Law (Laws of 1897, chap. 418), was against the weight of evidence.
    Appeals by the plaintiff, Teresa Rice, and by the défendant Julius Friederich from so much of a judgment of the Supreme Court in favor of the defendant Marvin A. Culver, entered in the office of the clerk of the county of Monroe on the 15th day of January, 1900, upon the decision of the court rendered after a trial at the Monroe Special Term, as adjudges that the liens of the plaintiff and of the defendant Julius Friederich are not valid as against the defendant Marvin A. Culver.
    
      John II. Hopkins, for the appellant Rice.
    
      W. II. Sullivan, for the appellant Friederich.
    
      Charles M. Williams, for the respondent.
   "Williams, J.:

This action was brought to establish and .foreclose mechanics’ liens upon real property known as “ Culver Field ” in the city of Rochester, FT. V. The respondent Culver was the owner and lessor of the property, and the defendant, the “Rochester Exhibition Company,” was the lessee thereof. The labor and materials were performed and furnished' upon the property, under contracts with the lessee alone, but it was claimed that they were so performed and furnished for the improvement of the property, and with the consent or at the request of the owner, and that, therefore, the appellants were entitled to have liens upon the respondent’s interest in the property, as owner thereof-. The controversy was mainly over this question. The trial court found that there was no such consent or request as to give the right to such liens, and denied this relief to the appellants.

The statute under which the liens were sought to be established is section 3, chapter 418, Laws of 1897, as follows:

“.§ 3. Mechanics’ lien on real property.—- A contractor, subcontractor, laborer, or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-contractor, shall have a lien for the principal and interest of the value, or the agreed price, of "such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article.”

The question before this court is whether the finding of fact, that there was no consent or request of the owner, giving a right to the liens in question,.under this statute, was supported by the evidence in the case, or whether such finding was against the evidence. 'Our. attention is called to very many cases decided in the courts of this State, relating to the meaning of the words “consent” and " “ request ” as used in the statute, and the circumstances, under which stich consent or request should be found. The latest expression of the Court of Appeals upon this subject is in the case of National Wall Paper Co. v. Sire (163 N. Y. 122). The earlier cases in the Court of Appeals were there reviewed and distinguished, and the following propositions were laid down :

First. Ho express consent is necessary on the part of the owner to bring the -case within the statute.-

Second. A consent may be implied from the conduct and attitude of the owner with respect to the improvements which are in process of construction.

Third. The facts from which the inference of consent is to be drawn must be such-as to indicated willingness on the part of the owners to have the improvements made, of án acquiescence in the means adopted- for that purpose, with knowledgé of the object for which they, are employed. „ •

Fourth. The omission of the owner to object to improvements made upon his premises by a tenant, when he has knowledge of the ■circumstances under which they are being made, is always an important fact bearing upon this question.

The question as considered in that case was a very simple one of fact, and not one involving intricate questions of law, as one would be led to suppose it would be from a mere casual view of the numerous cases decided and reported in the books. There was a lease, in that case which gave the tenant the right to make necessary repairs, but at his own expense. The court was, however, of the opinion that no such extensive repairs as those actually made were within the contemplation of the parties in making the lease. Therefore, consent could hardly be inferred or found from the lease alone. The owner and lessor, however, was cognizant of the repairs proposed and contracted for by the tenant, and was present and saw-them being made, during a period of five months, and approved of them, and soon after they were completed he took possession of the property under some provisions for forfeiture of the lease, and had the full benefit of the improvements, costing over $8,000. The trial court found the fact of consent. The General Term reversed on the ground that there was no evidence to support the finding, and the Court of Appeals reversed the General Term and affirmed the trial court, holding that consent could be inferred and found from the terms of the lease and the circumstances attending the making of the repairs, though there was no express consent in the lease or otherwise to the making of repairs to the extent that they were made. It does not seem to be necessary for us to consider or discuss the many cases referred to by counsel, in view of the decision we have referred to and the review of the cases therein contained.

The question here is purely one of fact. The lease was for five years, with provisions as to renewal at the end of the term. The rent was $1,500 per year. It was agreed that the property should be used for no other purposes than the construction, use and maintenance of a general athletic field with appurtenances; that the lessee should keep the property in good repair during the term, and leave the same in as good condition as when taken, excepting reasonable use and wear and trees necessarily removed in preparing the property for the use for which it was leased, and that the lessee should have the privilege of removing from the property any and all buildings, erections, appurtenances and improvements which it should cause to.be erected or. placed thereon, at any time before, or upon, the termination of the lease, or renewal thereof, such buildings, erections, appurtenances and improvements to remain at all times the property of the lessee.

The lessee took possession of the property and.fitted it up for the purposes, for which it was leased. There was water from the water works department introduced in the property by means of water pipes, and a sewer constructed to drain the property and carry off waste water. There were buildings erected and in them were placed water closets,, baths, urinals, hose attachments, wash basins - and about the property hose' stand pipes. There were constructed bicycle, base ball and foot ball grounds, grand stands, fences, etc. There were trees, stumps and stones removed from the property, and filling and grading and sodding done thereon. All these improvements were made at great expense under contracts with the lessee alope. It was proper and necessary in the preparation of the property for the use intended to be made of it, and for which it was expressly leased. The lessee owned all the buildings, erections •and improvements, and had the right to remove the same, so far as possible, at the end of the term. It must be inferred from the terms of the lease itself .that the lessor had knowledge of the general nature of the erections and improvements to be made upon the property, and consented thereto. The lease contemplated such erections and improvements, and would have been of no avail for the purposes for which it was given unless they could be so made. Moreover, the owner and lessor was about the property and saw the erections and improvements being made, during all the time the work was being performed and the materials furnished, and made no objections thereto. He personally, in writing, applied to the water works department, for the introduction of the water upon the property, and he made' suggestions or gave directions as to the mov-. ing of earth for filling purposes.

It would seem that, under the circumstances, his consent to the making of the erections and improvements upon the property should be regarded as settled. The trial justice, in finding the contrary, must have treated the question of consent not as a single one of fact, but as involving some question of equity beyond the mere fact. ■ In the course of the trial the court spoke of the consent as one that in equity would he binding, and evidently had in mind the language of the court used in deciding the Wall Paper case in the Appellate Division (37 App. Div. 408), where reference was made to Spruck v. McRoberts (139 N. Y. 199) and Hankwison v. Yantine (152 id. 29), and where the Appellate Division said the true test was whether the owner had given his consent in such a manner as to bind him within recognized principles of equity. This language was used after quoting from the opinion in Spruck v. McRoberts— some language incidentally there used. A reading of the full opinion in that case ■will' show there was no such principle there stated applicable to this case. The same judge who wrote the opinion in Spruck v. McRoberts also wrote the opinion reversing the Wall Paper case, and at the close of the opinion in the latter case distinctly stated the nature of the cases in 139 and 152 Hew York, and that they had no application to the Wall Paper case, and we think it equally true that they have no application to the case we are here considering. The consent we are here dealing with is a statutory one, which is in no sense to be determined upon principles of equity. There may well be cases in which equitable principles would be applicable where, for instance, an owner might be estopped in equity from denying consent by reason of having had the full benefit of improvements made under circumstances not showing actual consent ( Wall Paper Case, supra, 129) ; but this is not such a case.

If there was consent or request established, the liens were matters of right under the statute and in no way dependent upon equitable principles. The appellants stand here upon their legal rights to liens under the statute, and the only question is whether there was a consent or request by the owner; whether the trial court properly held that no such consent or request existed.

We think the court was in error in making the finding that there was no consent or request, and that for this error the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

All concurred.

Judgment reversed upon question of law and of fact and new trial ordered, with costs to each appellant to abide event.  