This action is brought to enforce a mechanic's lien filed by the plaintiff against certain lands in the city of Rochester owned by the appellant. The defendant Friederich is also a lienor. In the spring of 1898 the appellant entered into negotiations for the lease of the premises, which consisted of a tract of about twenty-one acres of land, to the defendant corporation, The Rochester Exhibition Company. These negotiations culminated in a written lease bearing date the 10th day of April, which was executed by the appellant on the 20th day of April and by the exhibition company on the 28th day of April. The work for which the plaintiff's lien was filed consisted of plumbing work and material, and was furnished under a contract between her and the exhibition company dated April 27th. The work was begun on April 28th. The lien of the respondent Friederich was for grading the premises and clearing them of trees. It was also performed under a contract with the exhibition company. The work was begun about the 14th day of March. The lease from the appellant Culver to the defendant exhibition company was for a term ending December 31st, 1902, with the privilege of an extension. It provided that the lessee should not use the premises or permit the same to be used "for any other purpose than the construction, use and maintenance of a general athletic field, with appurtenances; the holding of general athletic games and events, and public amusements and enterprises." It further provided that the lessee should, at the termination of the lease, deliver up the *Page 64 premises in as good condition as when taken, except the trees necessarily removed by the lessee in preparing the property for its use. The lessee was given the right to remove at any time during the lease all buildings, erections and improvements which it might at any time erect or place on the land. On obtaining the lease the exhibition company erected extensive buildings and structures on the premises. For that work other liens were filed besides those of the plaintiff and the defendant Friederich. The trial court found that the appellant did not consent, within the meaning of the statute, to the improvements made by the lessee and rendered judgment in his favor against all the lienors. From that judgment the plaintiff and the defendant Friederich appealed to the Appellate Division, where the judgment of the Special Term, so far as it affected their claims, was reversed and a new trial ordered. From that order the appellant Culver appeals to this court.
The Appellate Division reversed the judgment of the Special Term both on the facts and the law, and, therefore, if there was any evidence in the case from which the court might find that the appellant consented, within the meaning of the statute, to the performance of the work for which the respondents claimed liens, the order of the Appellate Division must be affirmed or the appeal dismissed, as we have no jurisdiction to review questions of fact. If, on the other hand, there was no evidence to support a finding of consent by the appellant, then the order of the Appellate Division was erroneous and the judgment of the Special Term should be reinstated. We think that there is no evidence in the case which would have justified a decision by the Special Term in favor of the plaintiff. The statute (§ 3, ch. 418, Laws of 1897) provides: "A contractor, sub-contractor, laborer or materialman, 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 *Page 65 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 question to be determined in this case is the meaning to be given to the term "consent." Doubtless, in a certain sense of the word, the appellant did consent to the performance of the work done on his property, for at the time of the execution of the lease he must have known that the lessee intended to make erections thereon in order to use the premises for the purposes for which they were let. But a similar situation is presented in the great majority of demises of real property. If there is a building on the premises the tenant is, in the absence of an express covenant on the subject, required to keep the premises in ordinary repair. (1 Taylor on Landlord and Tenant, § 43; Suydam v. Jackson,54 N.Y. 450.) It seems that in this state a tenant may erect a new edifice on demised premises, provided it can be done without destroying or materially injuring other improvements, without the consent of the landlord or being subject to the charge of waste. (Winship v. Pitts, 3 Paige, 259.) Even in the case of existing structures, while the law precludes with some strictness the tenant from making alterations, there is a large field in which he may, without the permission of the landlord, make improvements beneficial to his use, unless they constitute a permanent injury to the estate. It could not have been intended by the legislature (if it had the power) to enact that by the mere demise of land the property of the owner should be subjected to the cost of structures or improvements which the tenant would have the right to erect by virtue of his estate under the lease. There is a marked distinction between the passive acquiescence of an owner in that he knows the improvements are being made, improvements which in many cases he has no right to prevent, and his actual and express consent or requirement that the improvement shall be made. It is the latter that constitutes the consent mentioned in the statute. To fall within that provision the owner must either be an affirmative factor in procuring the improvement to be *Page 66 made, or having possession and control of the premises assent to the improvement in the expectation that he will reap the benefit of it. It was well said by Justice FOLLETT in Vosseller v.Slater (25 App. Div. 368; affirmed, 163 N.Y. 564): "The term `with the consent of the owner,' as used in the statute, implies that the owner has power to give or withhold his consent in respect to the construction, alteration or reparation of the building. In case the vendor in an executory contract has no authority to require the vendee to build, alter or repair, and has no power to prevent him from doing so, his interest cannot be charged with a mechanic's lien for the erection, reparation or improvement of a building, ordered by the vendee simply because he (the vendor) knowing that the work has to be done and knowing that it is being done, does not try to stop what he has no power to prevent." In Hankinson v. Vantine (152 N.Y. 20) the lease provided that the tenant should not make any alterations in the premises without the consent of the lessor under penalty of forfeiture and damages. Subsequently the landlord released the tenant from this covenant and agreed that he should have the right to make alterations and improvements in the building. It was held that this did not render her estate liable for improvements or alterations in the procurement of which she did not participate. It was there said by Judge MARTIN: "The simple fact that the appellant gave Riker (tenant) the abstract right to make alterations in her store at his own expense, of which consent the plaintiff had no knowledge, by no means amounted to a consent by her that the plaintiff should furnish labor or materials to be employed in making alterations upon her property, especially in the absence of any notice or knowledge on her part from which such consent could be implied." Tested by the principle of the cases cited, the evidence is insufficient to show that the appellant consented to the performance by the plaintiff of the work for which her lien was filed. There was nothing in the lease itself that operated as such a consent The case is entirely different from those in which the tenant covenanted by the *Page 67 lease to erect buildings or make improvements. (Burkitt v.Harper, 79 N.Y. 273; Otis v. Dodd, 90 N.Y. 336; Jones v.Menke, 168 N.Y. 61; Hilton Dodge Lumber Co. v. Murray,47 App. Div. 289.) In those cases the estate of the landlord was properly held liable because not only did he require the improvement to be made, but the improvement inured to his benefit, either because it reverted to him at the expiration of the demised term or because his rent proceeded from its use. Here the landlord was to receive a fixed rent. It is true the lessee covenanted not to use the premises for other purposes than those prescribed in the lease, but it was not required that they should be used for those purposes. All structures or buildings erected by the lessee were to belong to and be removable by it. So long as the landlord received his rent it was immaterial to him whether the premises lay idle and unimproved or not. It is claimed that the appellant rendered his property liable because he signed an application to the local authorities to have the premises connected with the city water supply. The permit from the city was in no way a prerequisite to the construction of the plumbing furnished by the plaintiff, however necessary it might have been in order to connect that plumbing with the water supply. We presume that the appellant made the application because of some rule or requirement by the city officials that it should be made by the owner. We imagine that the tenant, as an occupant of the land, could have compelled the city to supply it with water on complying with reasonable conditions and security for the payment of the water rates, even though the owner had refused to join in the application. However this may be, the act of the appellant in thus aiding his tenant in procuring the supply of water did not operate to make him liable for the improvements made by the tenant.
It appears by the opinion of the learned Appellate Division that that court felt constrained by the authority of NationalWall Paper Company v. Sire (163 N.Y. 122) to reverse the judgment of the Special Term. We think that the case is *Page 68 plainly distinguishable from the one before us. There the work, which consisted of the decoration of the demised premises for the purpose of a hotel and restaurant, inured to the benefit of the landlord, who regained possession immediately after the work was completed. The landlord supervised and directed the performance of the work. His acts and conduct were such as to authorize the finding by the trial court that he actually participated in procuring the work to be done. This case is barren of the features alluded to. The appellant exercised no control or supervision over the performance of plaintiff's contract. The most he did was to express satisfaction at the manner in which the work was being performed. But this satisfaction or approval evidenced no intention to intervene in the conduct of the work, for under the terms of the lease the work was in no way in his interest. We think there was no evidence in the case authorizing the reversal of the judgment of the Special Term in favor of the appellant as against the plaintiff, and that the order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs.
The facts relating to the claim of the respondent Friederich differ materially from those under which the plaintiff's work was rendered. Friederich began the performance of his contract on March 14th. The lease from the appellant to the exhibition company bears date April 10th, but was not executed by either party till several days later. I think there is no evidence which would justify a finding that the exhibition company entered into possession of the premises as a tenant earlier than April 10th, or that before that time the appellant surrendered his control and possession of the property It is sufficient, however, to say that in the view most favorable to the appellant the court might have found that the appellant was in possession and control at the time the respondent Friederich did his work; and, therefore, for the disposition of this appeal we must assume that the trial court would have so found. We may concede that some of the work done by that respondent did not create any permanent benefit to the *Page 69 land, but a portion of it, consisting of removing stone and grading, was beneficial to the estate. Here again the case in the aspect most favorable to the appellant presents simply the question of fact whether the work was beneficial or not. Therefore, a trial court might have found that the appellant being in control and possession of his land knowingly suffered beneficial improvements to be made upon it. We think that these facts would, under the authorities, render his property liable for the work. (Nellis v. Bellinger, 6 Hun, 560; Husted v.Mathes, 77 N.Y. 388. See also opinion of FOLLETT, J., inVosseller v. Slater, supra.)
The order of the Appellate Division reversing the judgment and granting a new trial in favor of the defendant Friederich should be affirmed and judgment absolute rendered in that defendant's favor against the appellant, with costs.
HAIGHT, MARTIN, VANN and WERNER, JJ., concur; PARKER, Ch. J., and BARTLETT, J., dissent solely from the affirmance of the order in favor of the defendant Friederich.
Ordered accordingly.