
    Wahle, Phillips Company, Appellant, Respondent, v. Fifty-ninth Street-Madison Avenue Company, Respondent, Appellant, Impleaded with The German Theatre, Inc., and Others, Defendants.
    First Department,
    November 8, 1912.
    Lien — foreclosure of mechanic’s lien — ‘‘ improvement of real property ” — gas and electric fixtures — consent—appeal — power of court to award judgment pursuant to section 1317 of Code of Civil Procedure.
    Where in a suit to foreclose a mechanic’s lien, it appears that the plaintiff contracted to manufacture and install in a theatre gas and electric fixtures, consisting of chandeliers, electric light reflectors, pendants, brackets and lanterns, and gas and electric light .brackets, and the evidence shows that they were all specially designed with reference to the general decorative scheme and architecture of the building and to harmonize with one another, and were manufactured by the plaintiff from such designs, the labor of designing, manufacturing and installing such fixtures and the furnishing of the fixtures constitutes the performance of labor and furnishing of materials “for the improvement of real property ” within the meaning of section 3 of the Lien Law.
    Provisions of a sublease examined, and held, that the labor was performed and the materials furnished with the consent of the defendant, a sub-lessee.
    It was the intention of the Legislature in amending section 1317 of the Code of Civil Procedure by chapter 380 of the Laws of 1912 to confer upon the court on appeal in causes tried before the court, and particularly in equity causes, power to grant the judgment which should have been granted at the trial.
    Appeal by the plaintiff, Wahle, Phillips Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of June, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, in so far as said judgment disallows the plaintiff’s lien in part.
    Also an appeal by the defendant, Fifty-ninth Street-Madison Avenue Company, from said judgment in so far as it allows and decrees a foreclosure of the lien filed by plaintiff.
    
      John A. Dutton, for the plaintiff.
    
      Walter H. Bond, for the defendant Fifty-ninth Street-Madison Avenue Company.
   Laughlin, J.:

This is an action to foreclose a mechanic’s lien filed against part of the premises on the easterly side of Madison avenue, extending from Fifty-eighth street to Fifty-ninth street, in the borough of Manhattan, New York, which were owned by John D. Crimmins, Who on August 5, 1907, leased them to one Salomon, for twenty-one years from March 1, 1908. On February 29, 1908, said Salomon sublet the part of the premises against which the lien was filed, to one Baumfeld, for twenty years and five months from October 1, 1908, and on March 25, 1908, Baumfeld duly assigned this sublease to the German Theatre, Incorporated. Salomon assigned his lease to the Fifty-ninth Street-Madison Avenue Company on August 11, 1908. The materials and work, for which the lien was filed, were fnrrrishp.fi and performed by the plaintiff under a contract with the German Theatre, Incorporated. The Fifty-ninth Street-Madison Avenue Company at that time stood in the relation of lessee to the owner, and landlord to the German Theatre, Incorporated, with whom the plaintiff contracted. At the time Salomon sublet to Baumfeld, it appears by recitals in the sublease to him that the premises were known as a portion of the “ Lenox Lyceum property,” and that there was a building upon the premises which evidently had been used for theatrical productions. It was expressly provided by the lease thus subletting part of the premises that the landlord should alter the structure then on the premises, in accordance with plans and specifications agreed upon, so that there should be upon the premises at the time the term under the sublease was to commence “a theatre in accordance with the intention of the parties as set forth in the plans, specifications and this lease.” With respect to the decoration of the theatre, the sublease contained the following provisions:

The general decoration of the theatre shall be according to the desires and reasonable wishes of the lessor and shall be suitable for a general theatre and shall not be distinctly German and the lessor hereby agrees to pay to the order of the lessee and upon proper vouchers, the actual expenditure thereof not to exceed fifteen thousand five hundred ($15,500) dollars for the interior decoration of the theatre, which shall be construed to include all mural paintings or ornamental woodwork, lambrequin, carpets, hangings and chandeliers. * * * It is understood and agreed that the interior decorations shall be made by the lessee and that the lessor shall not be responsible for nor have any liability therefor or thereon except only on such contracts relating thereto as he shall have approved in writing and consented to and that the sum not exceeding Fifteen thousand Five hundred ($15,500) Dollars shall only be payable upon vouchers issued upon such contracts so approved.” The record does not definitely show the extent of the changes and alterations made by Salomon, or by his assignee, the Fifty-ninth Street-Madison Avenue Company, pursuant to this lease to Baumfeld; but with respect to the interior decorations it appears that $15,599.05 was paid by the Fifty-ninth Street-Madison Avenue Company for such work to contractors other than the plaintiff. On the 14th day of September, 1908, or seventeen days before the term under the sublease was to commence, the German Theatre, Incorporated, made a contract with the plaintiff for the manufacture and installation of interior decorations, under which the lien was filed. The contract embraces gas and electric fixtures, and the plaintiff agreed to furnish and install the fixtures in the theatre for $1,140. The schedule of fixtures furnished and installed by the plaintiff embraced electric light ceiling lamps or chandeliers, electric light reflectors, pendants, brackets and lanterns, and gas and electric light brackets. The evidence shows that they were all specially designed with reference to the general decorative scheme and architecture of the building, and to harmonize with one another and were specially manufactured by the plaintiff from such designs.

The trial court sustained the lien with respect to one of the electric ceiling lamps or chandeliers, described as a “sunburst,” but disallowed the lien in all ether respects. The defendant Fifty-ninth Street-Madison Avenue Company contends that none of these fixtures constituted an “improvement of real property ” within the intent and meaning of section 3 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), which 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.”

The term “ owner ” as used in the Lien Law is defined by section 2 as including “ the owner in fee of real property, or of a less estate therein” and “a lessee for a term of years.” The plaintiff contends that furnishing and installing all of these fixtures constituted the furnishing of materials and the performance of labor “for the improvement of real property” within the contemplation of the statute.

The fixture, with respect to which the trial court sustained the lien, consisted of a forty-eight electric light ceiling lamp or chandelier suspended from the ceiling of the main auditorium. It weighed between 400 and 500 pounds and was between seven and eight feet in diameter. The ceiling at the point where it was attached prior to its installation was a wire lathing attached to the horizontal part of the angle irons and the under side of the lathing was covered with plaster. In order to attach this chandelier to the ceiling seven or eight holes, each about four inches i£l diameter, were broken through the ceiling, through which wires were run, which were attached to the chandelier and to the angle irons above. The chandelier consisted of several tiers of lights, one below another, attached together, but disattached from the upper part of the chandelier so that they could be lowered to the floor, about fifty feet below, by a block and fall, consisting of ropes and pulleys, the ropes passing through another hole in the ceiling seven or eight inches in diameter, made for that purpose. The lights of the chandelier were connected with the wiring in ■ the building by four circuits, each consisting of two wires fastened together by being twisted and soldered to make electrically secure joints, around which okonite tape was wound and around it a friction tape. The other fixtures embraced insulating joints, which covered the openings in the walls, through which the wires from the outlet boxes projected and which were screwed onto the studs of the building, and brackets and chandeliers, which were then screwed into the insulating joints, and wires passing from the lamps through the brackets and chandeliers and connected with the wires projecting from the outlet boxes in the insulating joints by a process known as splicing, consisting of twisting, soldering and winding, as already described with respect to the large chandelier. As additional evidence that these fixtures were intended to be permanently attached to and form part of the realty, which is an important consideration in deciding such a question (Union Stove Works v. Klingman, 20 App. Div. 449; Berliner v. Piqua Club Assn., 32 Misc. Rep. 470), we find a provision in the sublease from Salomon to Baumfeld, by which the lessee agreed upon the end or sooner termination of such term to deliver up the said premises and quit and surrender the same, together with the fixtures and appurtenances in as good state and condition as reasonable use and wear thereof will permit, damages by fire and elements excepted.”

The learned counsel for the Fifty-ninth Street-Madison Avenue Company relies upon the decision of this court in Caldwell v. Glazier (138 App. Div. 826) to support the proposition' that none of these fixtures constitute an improvement of real property.” The facts of that case, however, distinguish it from the case at bar. The gas and electric fixtures there in question were not specially designed or manufactured for the particular use, hut were such as might have been obtained in the market, and were so obtained. We are of opinion that the labor of designing, manufacturing and installing these fixtures, and the furnishing of the fixtures, constituted the performance of labor and furnishing of materials “for the improvement of real property ” within the provisions of the Lien Law.

The only other question which requires consideration arises on the contention of the Fifty-ninth Street-Madison Avenue Company, that the labor and materials were not performed or furnished with its consent or at its request. We are of opinion that the provisions of the lease herein quoted show that the Fifty-ninth Street-Madison Avenue Company consented, not only to interior decorations of the cost of $15,500, but of such amount as the lessee might see fit to expend thereon, subject of course to approval of the landlord as provided in that part of the lease hereinbefore quoted. The lease limited the liability of the landlord, as between it and the tenant, but did not limit the amount to be expended by the tenant in making the interior decorations, which ultimately were to inure to the benefit of the landlord. Moreover, aside from these provisions of the lease, the evidence tends to show that the Fifty-ninth Street-Madison Avenue Company participated in the ' negotiations which resulted in the making of the contract under which the lien was filed, and consented to the performance of the work and to the furnishing of the materials.

In view of the recent amendment to section 1317 of the Code of Civil Procedure by chapter 380 of the Laws of 1912, we are of opinion that it was intended by the Legislature to confer power upon the court on appeal in causes tried before the court, and particularly in equity causes, where all the material evidence offered by either party.has been received, to grant the judgment that should have been granted at the trial, and, therefore, being of opinion on the evidence in this record that the plaintiff was entitled to judgment sustaining its hen in toto, such judgment may be now awarded. (Bonnette v. Molloy, 153 App. Div. 73.)

It follows that the judgment, in so far as it adjudges that the plaintiff has no lien, except for labor performed and materials furnished in manufacturing and installing the fixture known as the “ sunburst ” in said premises, should be reversed, with costs to the plaintiff appellant, and the judgment modified by sustaining the lien in toto.

McLaughlin, Clarke and Scott, JJ., concurred; Ingraham, P. J., concurred in result.

Judgment in part reversed, with costs to plaintiff, and judgment ordered as directed in opinion. Order to be settled on notice.  