
    Wahle-Phillips Company, Plaintiff, v. Mary A. Fitzgerald, Frank R. Tate, Broadway and Forty-third Street Building Company and C. L. Gray Construction Company, Defendants.
    (Supreme Court, New York Special Term,
    January, 1914.)
    Lease — requirement as to certain improvements is sufficient consent of owner to charge his property with liens — provision of lease that on expiration of term office fixtures should become property of lessor — landlord and tenant.
    A requirement in a lease that a tenant shall make certain improvements to the premises is sufficient consent of the owner to charge his property with liens for labor and materials supplied in making such improvements.
    Where a lease of an office building contains no provision that upon the expiration of the term office fixtures, having nothing distinctive or peculiar about their finish or construction, and the removal of which would result neither in injury to them nor to the building) should become the property of the lessor, they are not a permanent improvement to the realty within the meaning of sections 2 and 3 of the Lien Law.
    Where a lease expressly called for lighting fixtures in the theatre part of a building, and in an action to foreclose a mechanic’s lien by plaintiff who installed such fixtures it appears that while the owner was abroad her attorney in fact represented her in matters relating to the construction of the building and employed an inspector to supervise such work, the consent of the owner to the installation of the fixtures is sufficiently established, and plaintiff is entitled to a personal judgment for the full amount of the unpaid purchase price of all fixtures against defendant lessor, and to a lien against 'the fee interest of defendant owner in the premises for the unpaid price of the theatre fixtures.
    Action to foreclose a mechanic’s lien.
    John A. Dutton, for plaintiff.
    Winthrop E. Dwight (Thomas A. Thatcher, of counsel), for defendant Fitzgerald.
   Cohalan, J.

The plaintiff sues to foreclose a mechanic’s lien against the fee interest of the defendant Fitzgerald. Other defendants who were tenants — under a lease from the owner of the land—defaulted on the trial. On the 20th day of September, 1909, the owner leased the corner plot of land at Broadway and Forty-third street to Frank R. Tate and the Broadway and Forty-third Street Building Company. Tate thereafter assigned his interest in the lease to the defendant company. A substantial fireproof building, under the terms of the lease, was to be erected thereon, and a theatre was to occupy the entire rear portion of the land. A building loan agreement, secured by a bond and mortgage, was executed at the same time. The mortgage covered the tenants’ interest in the leased premises, including whatever personal property they might thereafter install in the structure. The owner, under the terms of the building loan agreement, was to advance in installments — as the work progressed — the sum of $500,000. An office and theatre building was thereupon completed by the C. L. Gray Construction Company, the general contractors for the work. A contract was made in August, 1910, between the C. L. Gray Construction Company and the plaintiff for furnishing and installing lighting fixtures in the respective theatre and the office parts of the building. Fixtures to the value of $1,331.50, for which no claim in this action is made, were installed under that contract. On the 1st day of December, 1910, the plaintiff entered into a contract with the Broadway and Forty-third Street Building Company and the C. L. Gray Construction Company. It also made a further contract with the Broadway and Forty-third Street Building Company which modified the contract to which the C. L. Gray Construction Company was a party. The plaintiff asserts a lien for materials furnished and labor performed under these respective contracts. It claims that there is due from the Broadway and Forty-third Street Building Company the sum of $2,329.28; that of this amount the sum of $329.28 is due for fixtures actually installed in the theatre, and that the balance is due for fixtures in the office portion of the building. The subject for consideration is whether or not the fixtures installed in the office building, within the meaning of sections 2 and 3 of the Lien Law, were permanent improvements upon the real property. The defendant Fitzgerald contends that none of these fixtures constituted such an improvement to the realty. Section 3 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38) provides as follows: “A contractor, sub-contractor, 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.” An examination of the fixtures, which were introduced in evidence, shows that they were of standard make and were sold by other manufacturers and in the trade by wholesale and retail dealers. There was nothing distinctive or peculiar about their finish or construction. It would seem (a) that there was no scheme of interior decoration in the office building with relation to which the fixtures were designed; (b) that there would have been no injury, either to the fixtures or to the office building, in the removal of fixtures of this type, and (c) that there was no provision in the lease, upon the termination thereof, that the fixtures would become the property of the owner of the fee. I am satisfied, from the authorities, that the office fixtures in this case are not a permanent improvement to the real estate. Caldwell v. Glazier, 138 App. Div. 826; Wahle-Phillips Co. v. Fifty-ninth St-Madison Ave. Co., 153 id. 17; McKeag v. Hanover Fire Ins. Co., 81 N. Y. 38. In the case of Caldwell v. Glazier, supra, the test adopted was whether or not the fixtures would pass upon the termination of the lease to the owner of the real property. The majority of the court held that unless this were true the installation of lighting fixtures was not a permanent improvement to the real property within the purview of the statute. The fixtures in evidence, under that decision, would not become a part of the real estate. While it is mani-

fest that these office fixtures were not specially designed with reference to the general decorative scheme and architecture of the building, the same thing cannot be said of the fixtures placed in the theatre part of the building. The theatre fixtures, for the most part, were made from special designs to.harmonize with the interior construction and decoration of that part of the building. These fixtures in any event fall within the decision of Wahle-Phillips Co. v. Fifty-ninth St.-Madison Ave. Co., supra. It is stipulated that the lien claimed against the theatre portion of the building amounts to the sum of $329.28. The defendant Fitzgerald further asserts that the plaintiff is not entitled to a lien because the knowledge and consent of the owner had not been shown. The rule of law is that a requirement in a lease that a tenant shall make certain improvements upon the premises is sufficient consent of the owner to charge his property with liens for labor and materials supplied in making such improvements. Burkitt v. Harper, 79 N. Y. 273; Otis v. Dodd, 90 id. 336; Wahle-Phillips Co. v. Fifty-ninth St.-Madison Ave. Co., supra. The lease in evidence expressly called for lighting fixtures such as were subsequently installed in the building by the plaintiff. Furthermore, while the defendant Fitzgerald was abroad, her attorney in fact represented her in matters relating to the construction of the building and employed an inspector to supervise such work. Through these conceded agents and the authority contained in the lease and the specifications, the consent of the owner to the installation of the fixtures has been sufficiently established. The plaintiff is entitled (1) to a personal judgment for the full amount of the unpaid purchase price of all of the fixtures against the defendant Broadway and Forty-third Street Building Company, and (2) to a lien against the fee interest in the premises of the defendant Fitzgerald for the unpaid price of the fixtures installed in the theatre part of the building. Decision and judgment may be submitted on notice.

Judgment accordingly.  