
    Hilton & Dodge Lumber Company, Respondent, v. J. Archibald Murray, Appellant, Impleaded with Buffalo Bill’s Wild West Company and Others, Respondents.
    
      .Mechanic's lien— repairs to buildings owned by a tenant having the right to remove them — when both land and buildings are subject to the lien.
    
    An owner of a park entered into an agreement with, a corporation by which the latter was granted license to occupy the park for the purpose of giving exhibitions in consideration of a stipulated portion of the receipts, and was given the right to remove all buildings which it might place upon the premises. Subsequently the owner and the corporation executed a lease which recited that the corporation owned the buildings and structures in the park and by which the owner and the corporation demised to one Morgan the park and the structures thereon for the term of one year for the purpose of giving exhibitions, Morgan to pay as rent a stipulated portion of the entrance fees to the owner and another portion to the corporation.
    ’The lease contained covenants by which Morgan agreed to cause the premises to be properly and sufficiently equipped at his own expense for exhibition purposes by erecting a bicycle track and its appurtenances, and that he would, if required to do so "by the owner’ánd the corporation at the termination of his. lease, remove any structures or other property which he might have placed upon the demised premises.
    Morgan constructed a bicycle track on the premises, and with the assent and by the direction of the general agent of the owner proceeded to repair and improve the buildings already upon the lands, but there was no evidencé that the corporation or any of its officers took part in such repair's.
    
      Held, that the owner and the corporation were both liable for mechanic’s liens-filed on account of the construction of the bicycle track and of the repairs to the buildings in the proportion which the value of the buildings''bore to the value of the land.
    Buildings erected by a lessee upon the demised premises must be considered real estate within the Mechanics’ Lien Law regardless of any agreement with the-owner that the lessee is to have the right to remove the buildings; and a- person who furnishes labor and material in their .construction or repair may acquire a lien upon the land itself as though no agreement for the removal of' the buildings existed.
    Appeal by the defendant, J. Archibald Murray, from a judgment of the Supreme Court in favor of the plaintiff and certain defendants, entered in the office of the clerk of the county of Kings on the 25tli day of April, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      J. Archibald Murray, appellant, in person.
    
      James A. C. Johnson and Joseph A. Burr, for the plaintiff and other lienors, respondents.
    
      S. Livingston Samuels, for Buffalo Bill’s Wild' West Company,, respondent.
   Per Curiam :

' This action is to foreclose a mechanic’s lien. The appellant Murray was the owner of a large tract of land in the city of Brooklyn,, known as Ambrose Park. In 1893 the appellant entered into an agreement with the defendant, the Wild West Company, by which the latter- was given license to occupy- the park for the purpose of giving exhibitions for a stipulated portion of the receipts, and was to have the right to remove all buildings and structures it might. place on the premises. In December, 1897, a lease was executed by Mr. Murray of the first part, the "Wild West Company of the second part and the defendant William J. Morgan of the third part, which recited that the party of the first part was the owner of lands known as “ Ambrose Park,” "and the party of the second part the owner of the buildings and other structures upon it. The instrument then proceeded to demise by the parties of the first and second parts, to the party of the third part, the tract of land known as Ambrose Park, together with all the buildings and ‘structures, for the term of one year, for the purpose of giving exhibitions; Morgan to pay as rent a stipulated proportion of the entrance fees to Murray, and another portion to the Wild West Company. The lease contained a covenant whereby Morgan agreed that he would cause the premises to be properly and sufficiently equipped, at his own expense, for use for the purpose of “ different kinds of exhibí-, tions, shows and business,” by erecting a bicycle track and its appurtenances, so as to be adequate to make a complete use of the entire premises demised. The only provision which we can find with reference to Morgan’s right to remove the buildings is his covenant, that if required so to do by the parties of the first and second parts he would, at the termination of his lease, remove any structures or other property which he might have placed on the demised premises.

Morgan entered into possession of the park, proceeded to construct thereon a bicycle track, and also to repair and improve the buildings already on the lands. He became involved in financial difficulties, and liens were filed upon the property by the plaintiff and certain of the defendants, either materialmen or contractors. It is stipulated in the case that one- Ambrose was the general agent of the appellant Murray for the management of the property. It appears by the evidence that Ambrose gave not only assent but directions to have certain repairs made to the buildings, fences and other structures on the property. Some of the liens filed include work and labor furnished not only for the bicycle track but also for the repairs to the other structures. The learned trial court held the land of the appellant Murray subject to the full amount of these liens, as to the bicycle track, on the ground that the lease expressly provided for its construction, and as to the repairs to the other structures, because defendant’s agent Ambrose had joined in the direction for them. The court decreed a sale of •the property for the satisfaction of the liens, but provided that the sale should be made subject to the right of the Wild West,Company to remove its buildings, thus practically relieving that defends ant and its property from any liability. From the judgment the defendant Murray alone appealed.

Were this the ordinary case of constructions erected on land without any agreement for their removal, it is reasonably clear that the provisions of the lease and the action of the owner’s agent would be sufficient to charge the land. (Pell v. Baur, 133 N. Y. 377; Cowen v. Paddock, 137 id. 188.) The main contention of the appellant is ■ based on the claim that the buildings and track, toward the construction or repair of which the work and labor represented by the liens were applied, were by the agreement between the parties personal property or mere chattels. We concede that for no work furnished on a mere chattel, strictly such, can any lien be acquired against the land upon which it is situated. But buildings or other similar structures placed by one party on the land of another, which the former has the right to remove, do not present the case of chattels pure and simple. In Mott v. Palmer (1 N. Y. 564) a tenant had built a fence, under an agreement with his landlord, by which the former had the right to remove the material; the landlord subsequently conveyed the premises, with covenant of seizin; the tenant at the expiration of his term removed the fence; the purchaser sued the landlord for breach of his covenant, and a recovery was upheld. It was said by the Court of Appeals: “The.word land, when used in a deed, includes not only the naked earth, but everything within it, and the buildings, trees, fixtures and fences upon it.- * * * But the fence was within the description of the thing granted as clearly as. the land itself; and being within the description, it was a part of that which- the deed purported to convey, and of which the grantor covenanted that he was the owner.”

In Ombony v. Jones (19 N. Y. 234) a tenant erected a ballroom on the demised premises, for work on which a lien w.as filed. Suit was brought on the lien, judgment rendered, execution issued, and the building sold. It was there held that the tenant had the right of removal during his term, and that the purchaser succeeded to that right, which the tenant co.uld not defeat by a fraudulent sur-

render to the landlord. But the case is not authority for the proposition that the building was merely a chattel. On the contrary, Judge Comstock says: “The building now in question was, in its nature, real estate. Admitting that under the law of fixtures, it could be removed by the tenant and placed in another situation, it would still be real estate, unless fixed in its new location under circumstances like those which justified the removal from its original, site. There are, in the books, many examples of movable fixtures, which become chattels the moment they are severed, and have none of the, characteristics of land. That ccmnot be said in the present case. A building is,' in its very nature, an annexation to land, and it becomes a chattel only by the application of some exceptional rule.” So it was held in Loughran v. Ross (45 N. Y. 792) that if a tenant, having erected a building during his tenancy, which he has the right to remove, renews his lease without reserving the right to remove the buildings, he thereby loses such right. It was there said: A lease of lands and premises carries with it the buildings and fixtures on the premises, and the tenant, accepting a lease of the premises without excepting the buildings, takes a lease of the lands with the buildings and fixtures and acknowledges the title of the landlord to both, and is estopped from controverting it.” The same rule was held in Talbot v. Cruger (151 N. Y. 117).

It will be seen, therefore, that the right given tenants to remove buildings does not make such buildings mere chattels. Had the appellant conveyed the land when the buildings were standing upon it, the outstanding right in the Wild West Company to remove those buildings would have been a breach of the covenants given on such conveyance ; and had he owned both buildings and land he could not have reserved the buildings by parol. (Noble v. Bosworth, 19 Pick. 814.) We are of opinion, therefore, that under the Mechanics’ Lien Law buildings must be considered as real estate, regardless of any agreement with the owner of the land as to the right of removal; and that one who furnishes labor or material for their construction or repair may acquire a lien for his claim upon the land itself, under the same circumstances which would subject the land to that lien, provided no agreement for the removal of the buildings existed.

We now reach the question as to the respective liabilities of Murray, the owner of the land, and the Wild West Company, the owner of the buildings. It may very well be that a sale of the land under the decree in this action will result in a surplus, and to that surplus Murray is entitled. The provision in the decree that the sale shall be subject to the right of the Wild West Company to remove its buildings will.diminish the amount to be realized on the sale by the value of those buildings. Hence the appellant is interested in reversing so much of the decree as,provides for this reservation on the sale. While it is recited in the lease to Morgan that Murray is the owner of the land and the company the owner of the buildings, still there is. but a. single joint, demise of both parties, and that demise is of the *land and buildings together as a piece of real estate. If the appellant’s property is to be held liable for the work done on the cycle track because of the provision in the lease, we do not see why that of the Wild West Company should not also be subjected to liability for the same reason. It is to be said of both these parties that they were interested in the construction of this track and' the improvements placed on the land, for the rentals which they.were to obtain depended on the amount of the receipts from the- exhibitions to be held on the grounds. There is no evidence that the company or any of its officers took personal part in the repairs on the buildings, which were made by the tenant Morgan, but the lease contained a provision that the premises should be properly equipped by. the tenant for the' purposes of the exhibitions to be held thereon. If the repairs made by Morgan, and the subject of these.liens, were requisite, to properly equip the grounds, the Wild West Company was liable for such liens as well as the appellant. The question of the extent of the respective liabilities of the appellant and the Wild West Company, or rather of. their properties,- is difficult to- determine under any circumstances, and impossible for us to adjust on this record. We think the true rule is to hold these parties as between themselves liable' proportionately to their respective property interests; that is to. say, the value of the buildings, the value of the land. We have no evidence of what those values are. The proper way to dispose of this appeal is to reverse -so much of the decree as directs that the' sale shall be subject to the right of the Wild! West Company to remove the buildings and modify the judgment so that the right be reserved by the judgment to either the company or the appellant to apply to the court .at Special Term to hear and determine the amounts of their respective liabilities. As thus modified, the judgment should be affirmed, with costs to the plaintiff and to the Yellow Pine Company, respondents, and to the appellant as against the respondent the Wild West Company.

All concurred.

Judgment reversed so far as it directs that the sale shall be subject. to the right of the Wild West Company to remove the buildings, and modified so as to reserve the right to the Wild West Company, or the appellant, to apply to the court at Special Term to hear and ■determine the amount of their respective liabilities. As thus modified, the remainder of the' judgment is affirmed, with costs to the plaintiff and to the Yellow Pine Company, respondents, and to the appellant, as against the respondent the Wild West Company. 
      
       This opinion was written by Mr. Justice Culle-n before his designation as an. associate judge of the Court of Appeals,, and is adopted by this court. The-decision-of the court was rendered after such designation was made.
     