
    Andrew Cosgriff et al., App’lts, v. Wilson P. Foss et al., App’lts, and William Dewey, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Partition—Improvements—Lessee subsequently purchasing interest IN THE LAND.
    Defendant Dewey took a three year lease of certain premises for a stone quarry, and thereafter purchased an undivided interest in the land. He extended the quarry, and deepened the access to the same from the river, and made docks. The other parties to this action purchased the remaining undivided interests. In an action for partition brought before the expiration of the lease, Held, that Dewey was not entitled to compensation for the improvements made by him; that as between himself and his co-tenants on that question he was simply a lessee, and under the lease his only right was to take oil such things as were provided for by the lease and during its existence.
    Appeal from judgment of special term in an action for partition.
    The appeal is taken from so much of the judgment as awards. ' to the defendant Dewey compensation for improvements made by Mm.
    
      Irving Brown, for pl’ffs, app’lts; Garrett Snider, for def’ts, app’lts; A. S. Tompkins, for resp’t.
   Barnard, P. J.

—Catherine Blauvelt in March, 1889, was the owner of a piece of mountain land in Rockland county, on the west shore of the Hudson river, being one of the pieces described in the complaint The tract consists of about ninety-six acres. There was then a stone quarry opened on the north end of the-. land along the Hudson river. The owner in March, 1889, gave a three years lease of the property for a stone quarry to William Dewey. The owner reserved her right to cut the wood on the land, and to lease to other persons any part of the premises which could be used without injury to the said business of defendant. In August, 1890, Dewey purchased seven-sixteenths of the land. In August, 1890, the plaintiff, Cosgriff, and the defendants, Conklin and Foss, bought the remaining nine-sixteenths of the land. Dewey, while in possession as tenant, extended the quarry at considerable expense, and deepened the access to the same from the river, and made docks to facilitate the working of the quarry and 'the delivery of the product therefrom. The referee has allowed for the expense of adding to the quarry, and also for the river access. The court confirmed the report as to the quarry, but disallowed the same as to the expense upon the river front and in the river. The lease provided for neither. The tenant had at least a restricted right as tenant, but he had the first right to purchase at a price which any other person would give for the same. The tenant had the right to remove at any time during the lease “ any machinery or buildings which he may erect or place on said premises.” Foss and Conklin own the lease to Dewey. As between Mrs. Blauveltand Dewey, Dewey could make no claim against the landlord. The improvements were made as a new source of profit and during the existence of the lease for years. Dewey bought subject to. his own lease to Blauvelt and so did his co-tenants in common; and Dewey attorned to them after they purchased. The lease expired in March, 1892, over a year after this action was commenced. The case should be decided without reference to the tenancy in common, but solely as between landlord and tenant. The lessee had the right to open quarries on the demised property for his own profit. He did so, and at the end of the lease he could take away his appliances and buildings. The case clearly resembles Scott v. Guernsey, 48 N. Y., 106. In that case certain devisees of a remainder, during the existence of a life estate, made improvements and they were held not entitled to recover. The case of a mere tenant making the improvements under a lease would be much stronger against his right to compensation. The case of Ford v. Knapp, 102 N. Y., 135; 1 St. Rep., 362, does not change this rule. An old mill was owned by two persons. The interest of one was sold by execution. The other owner did what “ was material and normal to the use and character of the property, and such as joint owners of equal ability might be expected to join in making.” Pending the time of the sale and of the period of redemption a peculiar equity was thus presented which does not exist in this case. Here the improvements were made upon a bare hillside and solely for the profitable return to a tenant for years. If we are right in this conclusion it is not necessary to consider the question of the docks and improvements erected below high water mark. The trial judge disallowed them, and we think that Dewey can re-’ cover for no improvements on the main land, because they were made for himself. He had the right to purchase and did not do so. The only right under the lease as between himself and co-tenants was to take off such things as were provided for by the lease and during its existence.

The judgment should be modified so that the allowance for improvements be stricken out and the judgment otherwise affirmed, with costs to appellant out of the proceeds of the sale.

Dykman, J., concurs; Cullen, J., not sitting.  