I concur with Mr. Justice Clarke in the reversal of this judgment upon thb ground that the contract and other evidence offered as to the relation between the defendant and Cottrell was competent, but I do not agree with his conclusion upon the second question discussed in liis opinion as I do not think that under the Lien Law as it at present exists, gas and electrical fixtures furnished to a house constitute an improvement of real property.
*831By chapter 316 of the Laws of 1888 and chapter 673 of the Laws of 1895, which amended chapter 342 of the Laws of 1885, it was expressly provided that a person furnishing “ any materials which have been used [or which are to be used] in improving or equipping any house, building or appurtenances with any chandeliers, brackets or other fixtures or apparatus for supplying gas or electric light ” was entitled to a lien for the materials so furnished. But when the Lien Law of 1897 was adopted (Gen. Laws, chap. 49; Laws of 1897, chap. 418), which is now re-enacted in the present Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), this provision was stricken out and in lieu thereof it was and is now provided by section 3 of the act that “ 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 1ns agent, contractor or subcontractor, 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.” Thus to justify a lien the person seeking to establish it must furnish materials for the improvement of real property. Section 2 of the act provides that “ the term ‘ improvement,’ when [so] used in this chapter, includes the erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement.” It certainly cannot be assumed that the Legislature by this amendment intended to continue in force the provision of the act of 1895. That was specifically repealed and in lien thereof the material man was given a lien for all articles that went to the permanent improvement of the real property, making the idea of permanence the crucial test. What was connected with the mere temporary use of the property and had no relation to its permanent use was, it seems to me, excluded. When the real property is a private residence ordinary articles of furniture, carpets and hangings would not be a permanent improvement of the property for they are articles that the tenant or occupier of the property could remove when his temporary occupation was ended, while furnaces, ranges or machinery intended to be a part of the property itself and used by any occupier of the property would clearly be materials furnished for the permanent improvement of *832the property. It seems to me that gas and electric light fixtures which a tenant would be entitled to remove and which clearly would not pass as between vendor and vendee or mortgagor and mortgagee cannot be said to be furnished for the permanent improvement of the real property. All of these fixtures are annexed to or connected with the building by screws. or wires for the use of the tenant occupying the building. Their location and style depends upon the taste or fancy of the occupant as well as the nature of the illumination, whether gas, electricity or other illuminant be used. The case of Schaghticoke Powder Co. v. Greenwich & Johnsonville R. Co. (183 N. Y. 306) seems to me entirely in line with this construction of the statute. It was there held that dynamite,used in blasting out the frozen, earth of the right of way of a railroad was the subject of a lien. . It was material furnished for excavating the property "so as to permit. the construction of a railroad. .Thus’the material was used for a, permanent improvement of .the property in which tlm. owner ¿of the property was engaged,, and for which the dynamite. was furnished. The court there said that the present statute was adopted because the existing acts were'not considered liberal enough; to cover all the cases in wliich labor performed or materials furnished resulted in the improvement of the real property and thus contributed to the permanent enhancement of its value. Thus whenever a person furnished materials which contributed to the improvement of real property and thus contributed to tile permanent enhancement of its value, the case was embraced within the Lien Law of 1897, but these electrical fixtures are not within this definition. There is nothing permanent about their annexation to the building. They are merely for the temporary use of the .occupant, subject to be removed by him when he vacates the building and have no relation to the permanent improvement of the property or the enhancement of its value. I, therefore, think a person furnishing such gas and electrical fixtures is not entitled to a lien.
McLaughlin and Scott, Jj., concurred.
Judgment reversed,-new trial, ordered, costs to appellant to abide event. •