The evidence is not before us, and the only question present is whether the findings support the judgment.
' I think we may well assume that the amusement company took the place of Clymer and that any consent hy the owner that he might make improvements would apply to it.
The lease was a consent and a requirement that the theatre be built, equipped and lighted. It contemplated, however, that it should be along lines and plans and in a location mutually to be agreed upon and that the lights to be installed should be mutually agreed upon and that at least $3,000 of the proposed expenditure of $3,500 should be upon the theatre and its equipment. The owner could waive these requirements, and if it permitted the theatre to be built, lighted and equipped and had knowledge of the work as it was progressing, it may be held to have waived such provisions, and to have intrusted those matters to the judgment and discretion of the lessee. If it did not approve, it was its duty to object. Silence, itself, with knowledge of the facts, might be considered as a consent or a-waiver of the provisions.
The only finding tending to show that the theatre was built, equipped and lighted or that the other improvements were made with the consent of the owner is finding 27-B, that the owner “ aside from the knowledge it acquired by virtue of the terms of said lease had a general knowledge and information *370that improvements of the same general character as those described in the lease were being made or had been made, but it had no specific knowledge as to the details of the work, nor did it assume to exercise any control over the execution of said work or the extent of the same.”
This is not a finding that the owner knew how the theatre was being built or that it was being built or that its owner had waived the plans and other requirements and had. committed those matters to the lessee. The finding might be of force were it not for the words “ or had been made.” Those words render it valueless as showing consent of the owner. It may be that the owner had no knowledge of the fact that the theatre was being built until after the work was substantially finished. If a sketch of the building was shown the owner, and it made no objection, or if it permitted the construction of the building without inquiry, those and perhaps other facts might tend to show a waiver of the provision for the plans, the mutual agreement and the cost. It is perhaps probable that the owner had such knowledge, and by raising no objection to the work in progress, has put itself in a position where it cannot object to the building or to the expense thereof. It is not clear that all of the plaintiff’s claim was with reference to the theatre and its equipment, neither is it clear that the bill of the respondent Williams related only to the lighting or equipment of the theatre. Apparently they embraced other matters. In the view we take of the case the building, lighting and equipment of the theatre were required by the. lease, and the lease itself furnished the necessary consent of the owner, if the lessee or his assignee fairly complied with the terms of the lease as interpreted by the parties, or as its specific terms were waived or changed by their acts. We cannot, however, from the finding determine those facts in the absence of evidence, and with some reluctance we feel that the judgment in favor of the. plaintiff and claimant Williams must be reversed as not sustained by the findings.
There is nothing in the lease itself to indicate that the low land was to be filled in, or that a miniature railway was to be constructed, or that the foundation and approaches to an air dome were to be erected, with a fence around the street railway *371loop. Those were matters ordinarily resting in the discretion of the tenant, which might or might not be done, as he chose. The landlord cannot prevent the tenant from erecting trade fixtures upon his property, and by not objecting to them he does not consent to them in such a way as to make the property subject to a lien for their cost. The tenant was obliged, as most tenants are, to keep the premises in repair, sightly and in good condition; but it does not give, him full liberty to do what he wishes, and charge the cost thereof upon the leased property. In the absence of evidence tending to show that these improvements were made pursuant to the requirements of the lease, and as a part of the expenditure of the $3,500 mentioned therein, it is difficult to see how a lien for their cost can be impressed upon the property. It was not contemplated that the owner should be responsible for such improvements. The lease contemplated that all property or amusement devices (except the theatre and its equipment) put upon the land by the tenant should be the property of the landlord, apparently as security for his performance of the lease, with an option to the landlord to acquire all property not permanently attached to the land (aside from the lighting equipment) at an appraised value; if not so acquired the tenant could remove the same. The miniature railway, the air dome and fences may fall within this provision, and if the lessee performed its lease the property was removable unless the lessor purchased it. We do not know what the evidence was with reference to these claims. We can only say in the absence of the evidence that there is nothing in the finding to sustain a lien for such expenditures.
The judgment, so far as appealed from, should be reversed and a new trial granted, with costs to the appellants to abide the event.
Howard, J., concurred.
Judgment against the Benwick Park and Traffic Association and New York State Dredging Corporation reversed and new trial granted, with costs to appellants to abide the event.