
    Merton S. Mosher and Edwin H. Mosher, Respondents, v. Charles Lewis and Barbette Lewis, as Executrix, etc., of Joseph Lewis, Deceased, Appellants, Impleaded with Others.
    
      Mechanic's lien — consent of owner inferred from, his license to his tenant to alter and repair, and his acquiescence therein — building a vault under a sidewalJc is a beneficial improvement of the realty — constructive notice of the lease to lienors.
    
    In an action brought to foreclose a mechanic's lien for work done in a cellar and in a vault under a sidewalk in front of the building, and in laying an artificial sidewalk over such vault, it was claimed that the work was done by direction of the lessees and with the consent of the lessors and owners of the premises, who had authorized the lessees “ to make such alterations in the building demised by said lease as they may elect,” to which the following further provision was added: “ Consent is also given to said parties to alter and repair the said premises.” While the vault under the sidewalk was being constructed, one of the owners came there and, upon being informed how the new sidewalk, would be constructed, said it would be very nice and would improve the property.
    
      Held, that the repairs were made with the consent of the owners, within the meaning of section 1 of chapter 342 of the Laws of 1885;
    That the provision in the lease by which the owners gave consent that repairs and alterations be made, accompanied by the further fact that one of them saw and acquiesced in the work while it was in progress, made out a sufficient consent, especially in the case of ‘the vault and sidewalk, which was a permanent and beneficial improvement to the realty; - That the fact that the lease, which was recorded, showed that the improvements were to be made at the expense of the lessees, did not affect the rights of the lienors as against the owners, and, it seems, was not constructive notice of that fact to the lienors.
    Appeal by the defendants, Charles Lewis and Barbette Lewis, as executrix, etc., of Joseph Lewis, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office- of the clerk of the county of Hew York on the 25th day of August, 1896, upon the decision of the court rendered after a trial at the Hew York Special Term.
    This appeal was transferred from the first department to the second department.
    The action was commenced in the Court of Common Pleas of the city and county of Hew York. A trial there resulted in a judgment dismissing the complaint, which judgment was reversed and a new trial granted by the General Term of that court.
    
      The original defendants, Charles and Joseph Lewis, owners of premises on the Southwesterly corner of Eighth avenue and Thirteenth street, in the city of Hew'York, leased thénrto the defendants Wilson & Van Houten hy written lease of date February 7, 1893, for the term of ten years from the first day- of Hay then following.
    . Joseph Lewis died since the first trial, and Barbette,Lewis, as executrix of his will, has been substituted, as a defendant,
    
      Sidney H. Stucuri, for the appellants.
    
      Andrew Shiland, Jr., for-the respondents.
   Bradley, J.:

The claim for which the plaintiffs filed a mechanic’s, lien, which they seek to enforce by foreclosure, arose from materials furnished -and services performéd by theiti between the 15th day of April and the 15th day of June, 1893,. at the request of the defendants Wilson & Van Houten, lessees of Charles and Joseph Lewis, in making and laying the cellar floor, facing the cellar walls and concreting the cellar, amounting in value to $233.76, and in making and laying an artificial sidewalk in front of the building on the premises oh Eighth avenue and Thirteenth street, amounting in value to $350.64, making together $584.40. .,

The controverted question is whether this was done, with the consent of the owners and lessors in such sense as to permit the plaintiffs to assert.and have a lien, on the interest of such owners in the premises for the value of such materials and services, within the meaning and by virtue of the statute, (Laws of 1885, chap. 342, § 1.) By reference to the lease , it -is seen that Wilson & Van Houten, the lessees; agreed that they would either' improve the buildings then on the premises or erect, new buildings thereon ; would make all repairs at their -own cost and expense; would preserve the buildings in as good condition as they were at the time of the completion of such improvements, and would q-uit them in'such condition at the expiration of the term of the lease. . And, further, that they would -not “' -make any alteration without the'written consent of the said parties of the first part.”

By a further provision of date February 8, 1893, added at the foot of' the lease, and subscribed by -the lessors,.permission was granted to the lessees to make such alterations in the buildings demised by-said lease as they may elect.” And to enable them to avail themselves in the meantime of such permission, and the further permission hereinafter mentioned, the lessors, by another instrument of the same date executed by them, consented that Wilson & Van Houten should have the possession of the premises from that date to the 1st' day of May, 1893, at the rental rate of $1,500 *per annum, payable monthly in advance, and added, “ consent is also given to said parties to alter and repair said premises.” Wilson & Van Houten duly accepted the terms of that instrument, and agreed to perform accordingly. Thereupon, Wilson & Van Houten went into possession of the premises, and proceeded to make alterations and improvements, a portion only of which is the subject of consideration here.

In addition to the work before referred to in the cellar, the lessees caused a vault to be excavated therefrom to the curbline, walled and fitted it up as an extension of the basement room of the building. In doing this the old sidewalk was removed. The plaintiffs furnished the materials for and performed the work of laying the sidewalk over the vault. On review of the former trial the Court of Common Pleas, in an opinion delivered by Judge Bischoff, held that, upon the facts as they then, appeared, the plaintiffs acquired a lien-upon the title of the lessors for the amount of their claim, other than for making the sidewalk. (10 Misc. Rep. 373.) In that respect the views and conclusions there expressed are adopted. Upon the subject of that claim it may be assumed that the evidence is here no less for its support than it was on that trial.

As has already been observed, the tenants, Wilson & Van Houten, were la"wfully in possession of the ■ premises, having permission of their lessors to make such alterations and repairs as they should elect. Those made were of the freehold, and came within those which the lessees by the terms of the lease were required to leave in good condition on the surrender of the premises to the lessors. They having thus given permission to make such improvements, apparently by their presence, as one of them from time to time during the progress of the work acquiesced in and consented to them as made, the conclusion is fairly warranted that the work was done with their consent, within the meaning of the statute before referred to, and, therefore, the plaintiffs were permitted to avail themselves of it to acquire a lien upon the estate of the lessors as owners of the premises. (Burkitt v. Harper, 79 N. Y. 273 ; Otis v. Dodd, 90 id. 336; Schmalz v. Mead, 125 id. 188; Cowen v. Paddock, 137 id. 188.) On the review of the former trial the view of the court was that the lien of the plaintiffs for making the side- ' walk was not ¡established because there was an absence of evidence of the owners’consfent as to that work. Reference was made by the court on that review to the fact that the- written, permission made subsequently to the date of the lease was expressly .limited to -alterations iii the buildings demised. It is apparent from this expression in the opinion, and the fact was, that the further consent given to the lessees “ to alter and repair said premises” was not in evidence on that trial. There was also then the absence of the evidence introduced on the last trial to- the effect that the taking up of the old sidewalk and the laying of the new one were necessary to the improvement of extending* the' room of the cellar by means of the vault.

And further evidence, not appearing on the first trial and introduced on the last one, consisted of certain ordinances of the city of New York containing the provisions that the owner, lessee or occupant of any building fronting* on a street or avenue should at his own charge and expense pave, according to the ordinances of the city, and keep and maintain, in repair the sidewalks, curb and gutter of such street or avenue in front of such building. Also describing the stone with which the sidewalks should be paved and specifying how the stone should be laid, excluding the use of brick and round paving stone, and imposing a penalty for non-observance of such directions.

The evidence tends to prove that the sidewalk removed was composed of brick and broken flags, and that when the sidewalk had been taken up and the work of constructing the vault was proceeding, one of the defendant lessors was there,- and in a conversation with one of the lessees, being informed how the new sidewalk would be constructed, said it would be very nice' and improve the property. This vault and sidewalk constituted alteration and improvement of the realty beneficial in character. It is common knowledge that vaults are extended under sidewalks in cities to enlarge cellars or basements of buildings for purposes practically useful to their occupants. The view taken of the additional facts appearing by the evidence on the last trial is that they supply what was absent on the first trial to support a lien for the plaintiffs’ claim arising from the construction of the sidewalk, and that such improvement, in view of the vault, came within the alterations and repairs of the premises which the lessors gave consent to the tenants' to make. It may in this connection be observed that reference to the work of construction and repair of sidewalks is expressly made by the act of 1885 as 1 that for which alien maybe acquired when done with the consent of the owner within the meaning of the provisions of that act. While' as to the public the duty to maintain in repair the sidewalks is with the municipality, the expense of it is chargeable to the owners of the adjacent buildings (Laws of 1887, chap. 569), and by the ordinances before mentioned the city has sought ■ to impose upon the owners the primary duty to make and maintain the sidewalks. But in the present case it is a significant fact that the work of making and laying the sidewalk was rendered necessary by the conditions of the improvement of the premises made by extending the basement, and, therefore, was essential to such improvement.

In support of his contention that there was no consent, within the contemplation of the statute, to charge the estate of the owners with the lien,' the learned counsel for the appellants cited, among others, the case of Havens v. West Side E. L. & P. Co. (44 N. Y. St. Repr. 589 ; 49 id. 771; 143 N. Y. 632). There it was held that, although the owner had knowledge of the performance of the work caused to be done by the tenant in erecting structures on the demised premises,.he did not consent to it within the meaning of the statute. The lease in that case contained no provision or permission for the construction of the buildings, which were erected for the purposes of trade by the tenant. The lessor had no power to prevent the tenant from making such improvements as he saw fit by way of erection of structures for his own use. The owner might derive no ultimate benefit from them. The views expressed in the opinion of the court in that case at General Term (49 N. Y. St. Repr. 771) clearly present the propositions upon which its determination rested as distinguished from that upon which the right to a lien may be acquired under the statute. The case has no essential application to the one at bar. ,It may' be. assumed, upon the evidence in the present case, that it was contemplated that the owners would'derive an ultimate benefit from the improvements to which the work and materials of the plaintiffs contributed. By reason of' some default on the part of the lessees, the owners, were enabled to and did resume possession of the premises before the close of the first year. The question whether the plaintiffs were chargeable with notice of the provisions of the lease, to the effect that improve- ■ ments were to be made at the expense of the lessees, is not deemed! important, as the right to a lien upon! the estate of the owners was. not dependent upon the personal liability of .the latter for the work and materials; employed in making them.! (Schmalz v. Mead, 125 N. Y. 188, 193.)

■ And it may be added that our attention is called to no statute, which renders the record of the lease constructive notice .to the plaintiffs of its such provisions.

No other question seems to require the expression of consideration.

The judgment should be affirmed. .

All concurred.

Judgment affirmed,, with costs.  