
    James H. Havens, Pl’ff, v. The West Side Electric Light & Power Co. et al., Def'ts.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    Mechanics’ lien—Landlord, when not liable.
    Where the owner of leased land has no power to prevent the tenant from making such improvements as he sees fit and from which the owner can derive no ultimate benefit, the owner is not liable therefor, and a lien does not attach to the land. The mere fact that he may know that the tenant contemplates making certain improvements, or applying the property to certain purposes, cannot make the owner liable for the expense of such work.
    Appeal from portion of a judgment entered after trial of an action to foreclose a mechanics’ hen dismissing complaint as to-defendant Striker, the owner of the land.
    
      James M. Hunt, for Vincent et al., app’lts; Geo. Bliss, for Striker, resp’t.
    
      
       Affirming 44 St. Rep., 589.
    
   Van Brunt, P. J.

We see no reason to differ from the conclusion arrived at by the learned justice who tried the cause below, and we think that the judgment appealed from should be-affirmed for the reasons assigned by him in his opinion. It does not seem to us that it could possibly have been the intention of the legislature to make the owner of land which he has leased for a long term of years liable for improvements made upon this land for purposes of trade by his tenant. The mere fact that he may know that the tenant contemplates making certain improvements, or applying the property to certain purposes, certainly cannot make the owner liable for the moneys expended by his tenant in the doing of such work. It seems to us that the clear intent of the statute was to prevent the owner of real estate from permitting improvements to be made upon his property from which he1 is to derive an ultimate benefit, and which, without his consent or acquiescence, could not be made, without incurring some obligation to those who have supplied labor and materials for the making of such improvements. But in those cases where the owner has no power to prevent the tenant from making such improvements as he sees fit, and from which the owner can derive no ultimate benefit, it never could have been the intention of the legislature to make such owner liable, and it is doubtful, if they had attempted to do so, whether it lies within their power. The granting of an extra allowance, no costs having been allowed, seems to have been unauthorized. This amount should be stricken from the judgment, and the judgment, as modified, affirmed, with costs.

O'Brien and Lawrence, JJ., concur.  