"The mere consent of the owner of the fee that his tenant for a term of years may improve the premises by erecting buildings thereon, or repairing those already constructed, does not obligate him, either legally or morally, to pay for the same."

The consent contemplated by the statute is not a consent given to the tenant, but a consent given to the materialman. It is a holding out of the owner as acquiescing in the giving of credit which is at the foundation of the right to a lien against the owner of the fee, and where the contract is made with a tenant in possession under a lease having no connection whatever with the owner of the fee, it cannot reasonably be contended that the latter is either morally or legally bound to compensate the lienors.

The case of Otis v. Dodd, 90 N. Y. 336, on which the learned court below relies, is to be distinguished from this case by the fact that in that case the owner of the fee leased the premises to the Union Portland Cement Company, under a contract which required that company to construct certain buildings upon the premises, and to permit them to become a part of the realty. The Cement Company entered into a contract for the construction of these particular buildings, and the lessors came upon the premises, and assisted in locating the buildings, and gave directions as to their construction. The sole question determined by the court in that case was whether "the simple consent of Dodd and Ross to the making of the erections and improvements upon their real estate was sufficient, under the act referred to, to give the plaintiff a lien upon their interest in the real estate," and it was held that it did. There, however, the improvements were required by the contract for the benefit of the lessors, while in the case at bar the lessee is to have the benefit of such erections. There the lessee, who was bound to make the erections, entered into the contract for the construction of the buildings in pursuance of the contract, while here the lessee sublet the premises, and the subtenant entered into a contract for improvements not contemplated by the original lease, and which are not shown to have been constructed with the consent of the owners of the fee.

The lienors, before entering into their contract, could have ascertained the extent of the interest of the Renwick Park Amusement Company in the premises, and consequently the adequacy of their lien as security (Knapp v. Brown, 45 N. Y. 207, 212), and having elected to contract with a corporation having no relations whatever with the owner of the fee, and no facts appearing which would charge the latter with having consented to the improvements in excess of those contracted for in the lease with Clymer, there is no legitimate foundation for the assertion of a lien against the Renwick Park & Traffic Association.

The judgment should be reversed.

LYON and COCHRANE, JJ., concur.

JOHN M. KELLOGG, P. J. (concurring in result). 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 Amuse

ment Company took the place of Clymer, and that any consent by the owner that he might make improvements would apply to it. The lease was a consent and a requirement that the theater 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 theater and its equipment. The owner could waive these requirements, and if permitted the theater 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 theater was built, equipped, and lighted, or that the other improvements were made with the consent of the owner, is finding 27b, that the owner, "aside from the knowledge it acquired by virtue of the terms of said lease, had a general knowledge and information that 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 theater 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 theater 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 theater and its equipment; neither is it clear that the bill of the respondent Williams related only to the lighting or equipment of the theater. Apparently they embraced other matters. In the view we take of the case, the building, lighting, and equipment of the theater 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 lowland was to be filled in, or that a miniature railway was to be constructed, or that the foundation and approaches to an air drome were to be erected, with a fence around the street railway loop. 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 expenditures 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 theater 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 drome, 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., concurs.

ELEVATOR AUTOMATIC SIGNAL CO., Inc., v. BOK et al. (Supreme Court, Appellate Term, First Department. May 16, 1916.) 1. PLEADING 350(2)—JUDGMENT ON THE PLEADINGS-ISSUES OF FACT. Where the pleadings raise issues of fact, the granting of plaintiff's motion for judgment on the pleadings, before any testimony is taken, is improper.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1071, 1076; Dec. Dig. 350(2).]

2. SET-OFF AND COUNTERCLAIM 29(2)—VALIDITY OF COUNTERCLAIMS. In an action in replevin for the possession of corporation personalty, legal services rendered plaintiff corporation by a defendant, and disbursements made by defendants to and for the use of such corporation, matters relating to the subject-matter of the actions and occurring prior to their commencement, constituted valid counterclaims.

[Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. § 50; Dec. Dig. 29(2).]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from City Court of New York, Special Term.

Action by the Elevator Automatic Signal Company, Incorporated, against Gustav Bok and others. From a resettled order granting plaintiff's motion for judgment on the pleadings, defendants appeal. Order appealed from reversed, and motion denied.

Argued May term, 1916, before GUY, BIJUR, and COHALAŃ, JJ. Marcus E. Joffe, of New York City, for appellant Bok.

John W. Brainsby, of New York City (Marcus E. Joffe and John W. Brainsby, both of New York City, of counsel), for other appellants. Anton Gronich, of New York City, for respondent.

COHALAN, J. This action was brought in replevin, and the complaint alleges that on the 1st day of July, 1914, the plaintiff was entitled to the possession of certain corporation personal property.

[1] The respective defendants deny in their amended answers material allegations of the complaint, and they severally set up therein certain defenses and counterclaims, to which replies were properly interposed. The pleadings, as they stood on the trial, raised issues of fact, which should have been tried by the jury; yet before any testimony had been taken the court granted the plaintiff's motion for judgment on the pleadings. Apart from the fact that the denials raised issues of fact, the liens set up in the counterclaims were properly interposed as a defense to the plaintiff's cause of action. The defendant Bok alleges in his counterclaim that by the seizure by the sheriff of certain illuminators mentioned in the complaint, he has been deprived of his lien thereon, and the security afforded thereby, to his damage in the sum of $941.42.

[2] The transaction upon which this defendant predicates a recovery is a contract under which money was advanced to the plaintiff, and which money was used to create and manufacture the chattels replevied, and for the repayment of which it was agreed that he was to have a lien. The defendant Joffe asserts a lien on other effects, and in his counterclaim asks for a money judgment in the sum of $300 for legal services and for disbursements made by him to and for the use of the plaintiff corporation. The services rendered and the disbursements made by these defendants related to the subject-matter of the action, occurred prior to the commencement thereof, and constituted valid counterclaims. Scognamillo v. Passarelli, 210 N. Y. 550, 105 N. E. 199.

It follows that the order appealed from is reversed, with $10 costs and disbursements, and motion denied, with $10 costs.

GUY, J., concurs. BIJUR, J., concurs in the result.

(95 Misc. Rep. 122)

GREENWALD v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Term, First Department. May 22, 1916.)

1. CARRIERS 35-CARRIAGE OF GOODS-INTERSTATE COMMERCE COMMISSION

-REGULATION.

An initial carrier of an interstate shipment, by noting in the bill of lading, "Car to be opened by consignee," had no authority to vary the regulation of the Interstate Commerce Commission that the terminal carrier should unload all cars consigned to a particular station.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 94; Dec. Dig. 35.]

2. CARRIERS 121-CARRIAGE OF GOODS-DAMAGE-FAULT OF SHIPPER. Damage to a shipment of goods, due to its improper packing by the shipper, imposes no liability on the carrier, and where goods shipped were packed by the shipper in the car, the railroad was not liable for damage thereto, unless it occurred while the property was being unloaded by the road.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 531-536; Dec. Dig. 121.]

Requested instructions, stating correctly the only issues to be submitted to the jury, not clearly laid down in the main charge, should have been given.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 652; Dec. Dig. 260(2).]

4. CARRIERS 135-CARRIAGE OF GOODS-MEASURE OF DAMAGES.

The measure of damages to a shipper of goods damaged by the negligence of a carrier in handling at destination is the difference between the market value, at destination, of the goods in the condition in which they were when shipped and such value in the condition in which they were delivered.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 557-559, 599602, 6031⁄2-6042; Dec. Dig. 135.]

Appeal from City Court of New York, Trial Term.

Action by Daniel Greenwald against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Judgment reversed, and new trial ordered.

Argued May term, 1916, before GUY, BIJUR, and COHALAN, JJ. Alex. S. Lyman, of New York City (William Mann and Jacob. Aronson, both of New York City, of counsel), for appellant. Franklin Bien, of New York City, for respondent.

BIJUR, J. This action was brought by plaintiff for damages to a shipment of goods from Detroit to New York. The goods were packed by plaintiff in a car at Detroit upon the tracks of, and delivered for shipment to, a connecting carrier of the defendant, the Michigan Central Railroad Company. The bill of lading, which is otherwise in the ordinary form, has a notation "Car to be opened by consignee.” When the car reached the place of delivery specified, namely, the Franklin Street pier of the defendant, in this city, it was opened by defendant's employés, who, in accordance with their usual custom, proceeded to store the goods or otherwise handle them for delivery

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