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of such work. The lessee entered into a contract with the defendant lienor, the American Elevator Company, to do certain work upon the elevators of the building. This work was to be done for the sum of $3,745.57. The work was not completed, the lessee failing to make proper payments according to the terms of the contract, and before the completion of the work he went into bankruptcy. The sheriff took possession of the premises occupied by the lessee under judicial process and closed the premises. The American Elevator Company failed thereafter to make any demand upon the owner of the premises for access to the building in order to complete the work in question. At the time it stopped work, the amount of work remaining to be done was of the value of from $1,200 to $1,600. There was therefore no substantial performance of this contract, although as against the lessee his failure to comply with the terms of the contract would have excused further performance upon the part of this defendant lienor.

[5] Yet when the contractor or lienor seeks to enforce his claim against the real property in question, on the ground that the owner thereof, who was not privy to any contract with him, had consented to the doing of the work, it is necessary that such contractor or lienor should prove that the work in question had been substantially performed, or that the owner himself had prevented compliance with the contract. N. Y. Elevator Supply Co. v. Bremer, 74 App. Div. 400, 77 N. Y. Supp. 509, affirmed 175 N. Y. 520, 67 N. E. 1086.

The learned trial court found, and properly enough, upon the only evidence submitted to it, that the contract of this defendant lienor had not been performed substantially, and that it had made no offer to the owners to complete the contract, nor had it made any demand upon the owners for access to the building for that purpose. At the time this defendant lienor stopped its work, it had progressed so far thereon in the work of overhauling the elevators of the building that many of the elevators were dismantled and put out of use, most of them being tied to the ceiling on the top floor and in no usable condition for the owners of the building when they resumed possession thereof, after an order in summary proceedings dispossessing the lessees therefrom for failure to pay rent overdue. While the learned trial court found that this work on the elevators was done without the consent of the owners of the building, yet the other findings made on the evidence, and justifiably made, were such as to prevent the enforcement of any claim of lien on the premises in question as against the owners in favor of this defendant sienor.

[6] The defendant lienor, Weiderman Electric Company, did certain work in the way of installing new electric connections in the building, making new outlets on the various floors of the structure, and increasing the supply of electric light appliances throughout the building. This claim for a lien against the premises in question is based upon the contention that the work done by it was required to be done by an order of the New York Board of Fire Underwriters, and that by the covenants of the lease it was obligatory upon the tenant to comply with all orders of the New York Board of Fire Underwriters in regard to appliances used on the premises, and that, by

137 N.Y.S.-3

imposing such a covenant upon the lessee the owners had consented to the doing of the work in question. It was said in the opinion of this court on the former appeal that to any work done under such circumstances the owners must be deemed to have consented, within the meaning of the section of the Lien Law as aforesaid. The learned trial court found that the owners had not consented to this work, and to this extent it has failed to apply the law of his case as declared by his court on the former appeal. It is urged, however, that the work done by the defendant lienor Weiderman Electric Company was the result of the tearing down of the ceiling on the first floor, and was caused not so much by the order of the New York Board of Fire Underwriters, as it was by a condition brought about by the lessees which resulted in the intervention of the Board of Fire Underwriters. It appears from the proofs taken as to this claim that the electrical wiring of the building in question had been installed therein about 18 years ago, and that the system of installation was not such as was now permitted by the Board of Fire Underwriters in new work. There was proof given that parts of the system had deteriorated in many important particulars.

No doubt the action of the Board of Fire Underwriters on this particular occasion was inspired by facts which came to their attention after the ceiling of the first floor was taken down by the lessee. At the same time, however, we have the circumstance that the said board thereupon gave notice to these owners of the building, by which the owners were required to make a complete reinstallation of new feed wires and of branch circuits in all parts of the building, except the fourth and fifth floors. This notice was in writing, and when it was received by the owners they turned it over to their attorneys, who in turn notified the Board of Fire Underwriters that the matter had been referred to the lessee. These attorneys communicated with the lessee in writing, calling upon him to comply with the directions of the Board of Fire Underwriters, on the ground that such compliance was obligatory upon the lessees under the covenants of the lease. To the extent of making the new installation of feed wires and branch circuits in the floors of the building specified, such work must be deemed to have been within the consent of the owners according to the former opinion of this court. This work was required, not alone for the benefit of the lessee, but for the benefit of the owners as well. A failure to comply with his direction of the underwriters would result in a probable withdrawal of the insurance on the building, or at least in an increase of the insurance rates, as is commonly known. However, the contract with the Weiderman Electric Company seems to have embraced more work than the new installations required by the Board of Fire Underwriters, and to have covered many items required by the lessee for his own purposes, and as to which there was no consent given by the owners under the terms of the lease, and as to such items there is no right of lien against the premises in behalf of the contractors. What part of the claim is chargeable against the real property may be determined on a new trial.

[7] It appears by the provisions of the lease above quoted that

the lessee had become obligated to put a new maple wood floor on the first floor and basement of the building and upon a balcony, which was provided to be constructed in the first floor of the building. It was likewise provided therein that certain of the floors of the building which did not extend out to the front of the building should be carried to the front thereof. To the extent of doing this work, thus provided for in the lease, the owners must be deemed to have given their consent.

[8] The defendant lienor the Cross, Austin & Ireland Lumber Company furnished a considerable amount of lumber for use in making alterations and improvements in the building. Their claim of lien was disallowed. On the trial of the action, this lienor sought to show the purpose for which the material it had furnished had been used in the building. Acting upon some momentary theory, the learned trial court refused to allow this lienor to make such proof. It was clearly entitled to show that the materials for which they made a claim of lien were either in whole or in part used for the specific work for which the owners had given consent under the terms of the lease. The exclusion of this evidence when offered on the part of the lienor was error. The learned trial court found that some of this material was used for shelving and counters for the tenant. Just to what extent this use went does not not appear in evidence. It seems clear, however, that some part of this material was used for the purpose of making floors under the provisions of the lease on the first floor and basement and balcony of the building, and the lienor should have been allowed to establish, if it could, the extent to which this use went.

[9] The learned trial court, however, found by the seventy-second, seventy-third, seventy-fourth, and seventy-fifth of the findings proposed by the defendant lienors that the Cross, Austin & Ireland Lumber Company had delivered materials at the building of the reasonable value of $5,871.95; that said materials were actually used in and upon the building in the improvement and alteration thereof; that they were furnished with the knowledge and consent of the owners of said premises; and that they were furnished and used for the purpose of carrying out the provisions of the lease aforesaid between the tenant Leininger and the owners of said premises. Perhaps these findings thus referred to were inadvertently made. They certainly were inconsistent with the findings made on the same subject-matter in the formal decision of the court. We do not feel justified in disregarding these specified findings as merely inadvertent, though we may suspect they were. As they stand, they are certainly inconsistent with the judgment of the trial court, and the appellant is entitled, according to long established rules of law, to urge such inconsistencies for the purpose of reversing this judgment as against it. City of Buffalo v. D., L. & W. R. R. Co., 190 Ñ. Y. 84, 82 N. E. 513, 16 L. K. A. (N. S.) 506; Nickell v. Tracy, 184 N. Y. 386, 77 N. E. 391.

While it is apparent that some of the lumber furnished by this lienor was used in the building in question for the purpose to which the defendant owners had given formal consent by the provisions of

the lease, yet just to what extent this use went it is impossible to determine from an examination of the present record. The consent of the owners in regard to the use of the lumber certainly did not extend to any use thereof for any other purpose than that embraced properly within the consent as evidenced by the covenants of the lease, and certainly did not go to any use of any part thereof for shelving and counters as trade fixtures of the tenant.

[10] We are now brought to a consideration of the lien claimed by the defendant lienors McMurray & Bro. This lien is made up of three subdivisions. One part thereof is for the construction of a steel balcony along the walls of the first floor of the building, another part arises from the placing of ornamental metallic entrances to the various elevators of the building, and the third, and very much smaller part, consists of an item for extra work in connection with the erection of the balcony and the extending of certain floors to the front of the building. So far as the part of the claim which relates to the ornamental metallic entrances to the elevators is concerned, we agree with the learned trial court that such work was not within the consent of the owners as evidenced by the lease, and that it is not the subject of a lien against the real property in question. As to the balcony, however, we think the work done was within the consent of the owners. The lease called for the erection of "an appropriate balcony” divided into rooms. According to the proofs at the trial, it was intended when the lease was made that the balcony should be of wood; but it was found that under the rules of the Building Department of the City of New York it would not be proper to use a wooden balcony because of certain requirements of said department which would interfere very materially with the intended use thereof, and defeat largely the practical purposes of the erection of the balcony. The language in the lease referring to the balcony is not very definite; but it is broad enough to cover such a balcony and method of construction thereof as would be "appropriate” to the building itself and to the requirements of the various departments of the city of New York which had control over the erection and use thereof. Therefore, as we have stated, we think the contract made for the erection of the balcony in question was within the consent of the owners evidenced by the lease. As to the item of extra work, if this work was done properly to carry out the provisions of the contract as to the erection of the balcony and the extension of certain floors to the front of the building on Fulton street, this item was likewise within the consent of the owners as evidenced by the lease.

The views here expressed require that the judgment of the trial court be affirmed, with costs as to the plaintiff-appellant, and the defendant-appellant the American Elevator Company; and reversed as to the defendants-appellants Weiderman Electric Company, Cross, Austin & Ireland Lumber Company, and McMurray & Bro.; and that a new trial be granted as to said last-mentioned appellants, costs to abide the final award of costs.

THOMAS, WOODWARD, and RICH, JJ., concur. JENKS, P. J., not voting.

(151 App. Div. 756.)

PANGBURN V. BUICK MOTOR CO. et al. (Supreme Court, Appellate Division, Third Department. June 27, 1312.) 1. MASTER AND SERVANT (8 329*)-ACTION FOR INJURY TO THIRD PERSONCOMPLAINT.

The complaint, in an action against B., a corporation, and G., alleging that G., driving on a public street an automobile, the property of B., ran into plaintiff, and that defendant, its servants or agents, so negligently drove the automobile that plaintiff was struck thereby, in the absence of any requirement to make more definite, is sufficient to admit evidence that G. was the negligent servant, and was at the time of the accident engaged in the business of B.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 1268, 1269; Dec, Dig. $ 329.*] 2. APPEAL AND ERROR (8 864*)—REVIEW-SCOPE.

Appeal from the judgment alone, in an action of tort tried by a jury, brings up for review by the Appellate Division only questions of law arising on exceptions taken during the trial; questions of fact, and so whether the verdict was against the weight of evidence, being raised only by a motion for new trial, and, if it is denied, an appeal from the order.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1705-1767, 3456–3461; Dec. Dig. 8 864.*] 2. MASTER AND SERVANT (8 332*)-INJURY TO THIRD PERSON-ACT OF SERVANT IN BUSINESS OF MASTER-EVIDENCE.

Evidence, in an action for being run into by an automobile driven by an employé of its owner, held sufficient to go to the jury on the question of his having been engaged in running it in the business of the master at the time of the accident.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1274-1277; Dec. Dig. § 332.*] 4. JUDGMENT ($ 239*)—AGAINST COPARTY-INCONSISTENCY IN VERDICT.

Inconsistency of the verdict, in an action against master and servant, in finding against the master and for the servant, when the master could be liable only if the servant was negligent, does not render void the judgment against the master.

(Ed. Note.-For other cases, see Judgment, Cent. Dig. & 417; Dec.

Dig. $ 239.*] 6. APPEAL AND ERROR (8 864*)_REVIEW-SCOPE.

The judgment against th master sued with its servant for negligence of the servant, not being void because of inconsistency of the verdict in finding against the master and for the servant, cannot be disturbed, because of such inconsistency, on appeal from it alone; but that such inconsistency may be available on appeal, appeal must be taken from an order denying the master's motion to set aside the verdict therefor, that the appellate court may exercise its discretion and pass on the propriety of the order,

[Ed. Note,-For other cases, see Appeal and Error, Cent. Dig. 88

1765–1767, 3456–3461; Dec. Dig. $ 864.*] 6. APPEAL AND ERROR (8 883*)--REVIEW-INVITED ERBOR.

Even if the appellate court had power on appeal from the judgment alone to set it aside because of the inconsistency of the verdict in finding against the defendant master, and no cause of action as to the defendant servant, when the master could be liable only if the servant was negligent, it ought not to; the charge that if the jury should find one of the defendants was negligent, and the other not

negligent, verdict might be against one and not against the other, not For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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