
    New York Elevator Supply and Repair Company, Appellant, v. S. Parker Bremer, and Others, as Trustees under the Will of John L. Bremer, Deceased, Respondents, Impleaded with Others.
    
      Mechanic’s lien for worh done under a contract with a lessee with the consent of the lessor—unless the worh is completed payment therefor cannot be enforced from, the lessor.
    
    Evidence that a lease contained a covenant, by which the lessees agreed to install a steam heating and elevator plant upon the premises at their own expense, such plant to belong to the lessors at the completion of the term, and that the lessees, with the knowledge of the lessors, entered into a contract for the installation of the elevator, justifies the inference of such a consent on the part of the lessors to the installation of the elevator plant as will render the property subject to a mechanic’s lien for the cost of the work.
    If, however, the contractor wishes to hold the lessors liable for the cost of the work, it is incumbent upon him to substantially comply with the terms of his contract, and if, because the lessees refuse to pay for the work, he abandons the work, leaving the elevator unfinished.in every essential particular and absolutely useless for the purposes of operation, he cannot hold the lessors liable.
    Appeal by the plaintiff, the New York Elevator Supply and Repair Company, from a judgment of the Supreme Court in favor of the defendants, S. Parker Bremer and others, as trustees under the will of John L. Bremer, deceased, entered in the office of the clerk of the county óf New York on the 19th day of March, 1902, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 17th day of March, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Alexander S. Bacon, for the appellant.
    
      Henry W. Hardon, for the respondents.
   Hatch, J.:

This is an action to foreclose a mechanic’s lien against the owners of property for services rendered and material furnished at the request of the tenants, with the consent of the owners. The defendants, as trustees under a will, are the owners of certain premises in the city of Hew York, which were leased by them on March 9, 1900, to J. W. Aspell & Co., for a period of five years. The rental for the premises for the first year was the sum of $2,200, for the second year $7,500 and thereafter at a slight increase over the rental of the second year for the remainder of the term. It was agreed by the parties in one of the covenants of the lease that the lessees should put in and complete within three months from the signing of the lease a steam heating and elevator plant at their own expense, the same to belong to the lessors at the completion of the term. The tenants in fulfillment of this covenant entered into a contract with the plaintiff to furnish the elevator as called for in their lease. The agreed price of the same was $1,335, one-half of which by oral agreement was to be paid for at the time the machine was delivered. The three months’ time within which this elevator was to be completed was. thereafter extended by the defendants. The plaintiff commenced work thereon about July twentieth and continued until about August fifteenth, when it ceased all work upon the elevator, leaving the same uncompleted. To put this new elevator in it wás necessary to tear out the old one, so that at the cessation of the plaintiff’s work on August fifteenth there was no elevator in the building which could be used. The plaintiff ceased work, not from any interference by the defendants, but for the reason that it had not received any pay from the tenants as agreed, and because it discovered their insolvency, which it appears it had suspected before entering upon the contract. In regard to the insolvency of Aspell & Co., it appears that on July 7, 1900, the sheriff had taken possession of all their property and retained possession of the same until'September twenty-second ; that a petition was filed against them on August ninth; that later they were adjudged bankrupts, and that notice to surrender possession of the premises had been served upon them on August tenth for non-payment of rent. The amount of work necessary to complete the contract on August fifteenth was some $370, more than a fourth of the contract price.

The lease'in this case having provided that the tenants should put in á steam heating and elevator plant and make other repairs during the term of the lease at their own cost and expense, such improvements to belong to the lessors upon the expiration of the- lease, coupled with the fact that the agent of the lessors had notice of the contract which had been made with the tenants by the. plaintiff, is undoubtedly sufficient from which to infer .a consent upon the part of the owners to make such improvements and thereby made the property subject to a mechanic’s lien under the terms of the statute providing therefor. (Laws of 1897, chap. 418, art. 1; Jones v. Menke, 168 N. Y. 61; National Wall Paper Co. v. Sire, 163 id. 122; Burkitt v. Harper, 79 id. 273.)

If this were the only question presented by this appeal we should have little difficulty in sustaining the plaintiff’s right to a lien. It appears, however, that, the plaintiff abandoned its contract and failed to complete the improvements which it had entered upon, for which the lease provided and which the consent of the owners contemplated. The net result of the whole transaction to the owners of the building is this: they have paid for the entire improvement for which the lease made provision in the. reduced rental received for the use of the premises. At the commence- • ment of such improvement they had an operating elevator; this was torn out and the plaintiff has substituted therefor an incomplete elevator unfinished in every essential particular and absolutely useless for purposes of operation. To complete the same requires an expenditure of more than a fourth of the contract price. In De Klyn v. Gould (165 N. Y. 282) it was held that an owner of property could not be charged for improvements made, upon the premises even though he consented to certain specific changes thereon where there is a material departure from the specifications to which the owner consented, which largély increased the cost of the improvements. This case was construed in Jones v. Menke (supra) as holding that there would be no liability except for the improvement specified in the contract, to which the consent was given. In principle, an owner cannot be charged for improvements which, are incomplete and which fail to comply with the terms and specifications under which they were to be done and upon the performance of which the consent is based. An owner-under such circumstances does not subject himself to a lien upon the building anymore than he does where the contract is exceeded and the improvement is made more expensive. If the contractor desires to hold the owner of the building responsible for the work and materials furnished, it is incumbent upon him to substantially comply with the terms of the contract in respect to which the consent is given. The law never contemplated that a contractor could work actual damage to a building, fail to complete his contract and then charge the owner with liability for something to which he never consented. In principle there is no difference between such a case and a case where the owner has never consented to the making of the improvement. The contractor is bound to take notice of the rights of the owner and the requirements under which he may be charged, and if the contract to which the owner consents requires a specific thing, substantial compliance must be had therewith or the owner will not be bound. This is an essential element contemplated by the statute and failure to comply with it furnishes no right to a lien. Qf this fact the contractor is bound to take notice. Where he performs work under a contract with the tenant and also relies upon the consent of the owner, he is not justified in abandoning the work because the tenant refuses to pay or is otherwise guilty of a breach of the contract unless he be prevented from performing. This works no hardship to the contractor where he relies upon the consent of the owner and the security of the building. He runs no hazard of payment, as the owner is liable, even though the tenant fails in his undertaking. As the owner is held by virtue of having given his consent to the doing of a particular thing, that contract must be substantially performed or the owner may not be held liable. The principle which works such result is too plain to need further elaboration.

It follows that the judgment and order should be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs  