
    Jane McKenzie et al., as Executors, etc., Resp'ts, v. Loftus D. Hatton, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 16, 1894.)
    
    1. Landlord and tenant—Excavating permit.
    A permit to enter upon the demised premises, given by the lessor to parties excavating on an adjoining lot, does not make them his agents, servants or employes.
    2. Same.
    The entry of such parties, without the consent of the tenant, makes them trespassers, but does not constitute an eviction of the tenant, who still remains liable for the rent.
    Appeal from a judgment of the general term of the first department, rendered in favor of the plaintiffs, on a verdict directed at circuit, with exceptions to be heard in the first instance at general term.
    
      Foley & Powell, for app’lt; Edward W. S. Johnston, for resp’ts.
    
      
       Affirming 53 St. Rep., 776.
    
   Andrews, 0. J.

The only act of the lessors upon which the defense of eviction is sought to be supported was the granting of the permit to the contractors for the excavation on the adjacent lot, to enter upon the leased premises “ to do all things necessary for the purpose of preserving the walls and buildings from injury.” The permit was given to comply with the conditions imposed by § 474 of the consolidation act, 1882, in order to subject the party making the excavation to the obligation of protecting the building on the leased premises from injury therefrom. The permit of the lessors was not, however, alone sufficient to give a right of entry to the licensees. ¡No entry could be lawfully made, unless, in addition, the tenants consented. Johnson v. Oppenheim, 55 N. Y., 280; Sherwood v. Seaman, 2 Bos., 130. The right to enter for this purpose was not reserved to the lessors in the lease, and this made the consent of the lessees to such entry necessary to render the statute available. Both the lessors and the lessees were interested to impose upon the parties making the excavation the obligation to secure the leased building from any injury which might be occasioned thereby ; the lessors because of their reversion and the lessee because his obligation to payment would continue, notwithstanding the premises were rendered untenantable as the result of the excavation so long, at least, as he retained possession. Johnson v. Oppenheim, supra. The covenant in the lease on the part of the lessors to repair was limited, and did not . impose upon them an obligation to repair in case of injury from such a cause. This was the situation when the permit of the lessors was given. The permit was not a direction by lessors to the contractor to enter upon the premises. It was an authority, simply, which 'would become complete when supplemented by a similar authority from the defendant. It is a clear inference from the evidence that the lessors and the lessee so understood the transaction. The defendant testified that, before the entry, he was informed by the attorney for the lessors that the permit had been given, and, on being assured that it was right, he testified that he made no objection. Here, so far as appears, the relation of the lessors to the transaction ended. The contractors, having the permit, subsequently went to the defendant and insisted upon the right to enter to shore up and brace the building, and the defendant stated that he had given them no authority, and informed them that he required to be secured against loss or damage, and that he would hold them responsible until he consulted counsel. The contractors insisted that they would enter “ anyway,” and then the defendant desired them to consult with his engineer. There is evidence that the defendant consented to the entry by the contractors and only objected after he had found that the insertion of the needle beams interfered with the use of his engine-room. But if the contractors entered by force, without the defendant’s consent, they were trespassers, and so also if they abused any license they had. For this the lessors were not responsible, for the clear import of the evidence is that they did nothing in act or intention hostile to the right of the defendant under the lease.

The judgment should be affirmed, with costs.

All concur, except Bartlett, J., not sitting.

Judgment affirmed.  