I am unable to concur in the affirmance of this judgment. The case, as it seems to me, is not to be distinguished in principle from Herald Square Realty Co. v. Saks & Co. (215 N. Y. 427). In this case, as in that, the work required to be done by the tenant, and for which he seeks reimbursement from the landlord, involves the “making an important and permanent structural change in the building ” under lease. Such a burden, says the Court of Appeals (at p. 432), “is one that of course falls upon the owner, and if it is to be shifted to the tenant the warrant for the change should be plainly discoverable in the lease.”
I shall not attempt to restate the facts in the present case, *692for these have been very fully stated by Mr. Justice Page, but shall content myself with considering the clauses of the lease quoted by him, and which, as he considers, are sufficient to shift the liability to pay for the changes in the building from the landlord to the tenant. The only clause in the lease that can, as I think, by any possibility be so construed as to cover the case presented here is the 7th.
The 2d clause, which covers the obligation of the tenant to pay taxes, water charges and other like impositions, clearly has no application to the expense which the tenant now seeks to recover. As the Court of Appeals said, in the case already cited, of a similar clause in the lease then under consideration: “In that portion of the instrument which specifies that the defendant [tenant] is to pay all taxes, water rents and assessments of all kinds, it is expressly provided that he shall pay such charges ‘whether ordinary or extraordinary’ and ‘not only those commonly imposed.’ Under the rule of ejusdem generis this, reference to ‘ extraordinary ’ expenditures must be limited to the class in which they are mentioned. Taxes and assessments are not in the same category with the cost of making substantial changes in a commercial building.” (P. 432.) So also it is apparent, as I think, that the covenants for keeping the building and its appurtenances in good repair, and in returning it in like repair at the end of the term, afford no assistance in determining the question we now have to consider.
The 7th clause, under which, if at all, the defendant may escape liability for the cost of the structural changes in the building, reads as follows: “ Seventh. And the party of the second part doth hereby further covenant and agree to and with the said party of the first part, that she shall and will, at her own cost and expense, conform to, and fulfill and perform all present and future obligations, and all requirenaents of law, and all present and future ordinances, regulations, and lawful requirements of State, Municipal, and other legal and public authorities, now or hereafter existing, and all regulations and requirements of the Board of Eire Underwriters, and of each and all of the fire insurance companies insuring for the time being the said building against loss by fire, and all of the pro*693visions of the usual New York standard form of fire insurance policy, in relation to and connected with the said demised premises, or any of the buildings erected thereon, or any part of the same, and will perform the legal duty of the party of the first part as to keeping the sidewalks and curbs in front of and adjoining the said demised premises free from snow and ice, and hold the party of the first part harmless from any liability by reason of failure so to do.” The corresponding covenant in the lease considered in the Herald Square Realty Company case, while less verbose, was at least as comprehensive. It reads as follows: “And the party of the second part [the tenant] hereby covenants that it will promptly comply at its own expense with all orders, notices, regulations or requirements of any Municipal, State or other Authority or Departments or of the New York Board of Fire Underwriters, with reference to said premises.” In the opinion of the Court of Appeals, even this most comprehensive clause did not cover the case of a substantial structural change in the building, although such change was compelled by a municipal requirement.
The lease under consideration also contains a clause similar to one which was deemed significant in City of New York v. U. S. Trust Co. (116 App. Div. 349). The tenant covenants that she will not “make any alteration in or upon the said demised premises, or any part thereof, nor cut, drill into of otherwise disfigure or allow the disfigurement of the iron, marble or stone of said building, or deface in any manner the said demised premises, or any part thereof without the written, consent of the said party of the first part.” Of a similar covenant this court said in the case last cited: “This negatives the idea that the tenant agreed to bear the expense of such alterations if they should be forced upon the building by any superior authority.” The alterations made in the structure in the present case necessarily involved doing the things which the tenant could not lawfully do without his landlord’s consent. They were as necessary to the estate of the landlord as to that of the tenant because, unless they were made, neither the landlord nor any tenant could occupy and use the premises for the purposes for which they were designed. In the absence of a covenant fixing *694upon the tenant liability for such alterations beyond dispute, I think that no such liability should attach.
None of the cases relied upon to sustain the judgment appealed from seem to me to be in point. The inapplicability of Brokaw v. Sherry (161 App. Div. 796; 213 N. Y. 685) is clearly pointed out by Judge Werner in Herald Square Realty Co. v. Saks & Co. (supra). As for Morrissy v. Rhinelander Real Estate Co. (158 App. Div. 533) the obstruction which' the tenant had been obliged to remove, and for which he sought to charge the landlord, had been erected by the tenant himself in violation of law, and it was, therefore, just that he should bear the cost of its removal. For these reasons I am of opinion that the judgment should be reversed, and since there is no dispute as to the facts that judgment should be directed for the plaintiff, with costs in all courts.
Judgment affirmed, with costs.