App. Div.] SECOND DEPARTMENT, MARCH TERM, 1898. In the case of Potter v. Cromwell (40 N. Y. 287) a judgment creditor of the owner of certain premises had issued execution and the sheriff had sold the premises to the defendant Cromwell. The owner had previously erected upon the premises certain machinery, including what is known as "Noyes' Portable Grist-Mill." After the sheriff had made the sale the judgment debtor surrendered possession to the defendant, who, with the consent and permission of the judgment debtor, removed the machinery and grist mill and subsequently received the sheriff's deed of the premises. The plaintiff was thereafter appointed receiver in supplementary proceedings against the debtor and brought his action to recover the property which had been removed from the mill. The Court of Appeals held that the mill was a part of the realty, the title to which passed by the sheriff's deed. There was considerable review of the authorities upon the subject of fixtures, the court recognizing the distinction between property affixed to the building so that it could be easily detached, and machinery erected in such a way that it could not be removed "without injury to the building or any portion of it." The court adopted and approved the doctrine as to fixtures laid down in Teaff v. Hewitt (1 McCook [Ohio], 511), "that the true criterion of a fixture is the united application of three requisites: First. Actual annexation to the realty, or something appurtenant thereto. Second. Application to the use or purpose to which that part of the realty with which it is connected is appropriated. Third. The intention of the party making the annexation, to make a permanent accession to the freehold," and held: "Under all the authorities, therefore, in this State as well as elsewhere, this mill was a fixture. For it was annexed to the building erected upon the land, to be applied and appropriated to the business there to be carried on, with the design that it should be a permanent structure for use as a custom grist-mill for the neighborhood existing about it." This definition was again approved by the Court of Appeals in the case of McRea v. Central Nat. Bank of Troy (66 N. Y. 489), where the owner had erected machinery for a twine factory and subsequently sold the premises by conveyance, describing the land only, taking back a mortgage containing the same description, and, at the request of the grantee and after the execution of the deed, executed also a bill of sale of the machinery. SECOND DEPARTMENT, MARCH TERM, 1898. [Vol. 26. Great stress was laid upon the fact that, although most of the machines were complete in themselves and could be removed without material injury to themselves or the building, still there was sufficient evidence to show that the original intent of annexation was to make the machinery permanently a part of the freehold. Following these three elements of the doctrine of fixtures, I think it appears by the evidence in the case at bar that there was, First, an actual annexation of the plaintiff's erections to the realty or something appurtenant thereto. Second, an application to the use or purpose to which the realty was appropriated. Third, that the intention of the parties making the annexation was to make a permanent annexation to the freehold. In regard to the last proposition, as to intention, I do not in this connection discuss the intention of Mrs. Upham as the owner, for her consent to the erection of the machinery by the plaintiff and to the changes of the buildings on the premises and the erection of new buildings is discussed later. The only parties defendant concerned in the annexation were Heermance, while he was in possession, and subsequently the ice company which took an assignment of the lease in accordance with the consent of Mrs. Upham in the original leases. There can scarcely be doubt that it was the intention of Heermance and the ice company, who made the erections and additions, that they should be permanently attached to the premises for the purposes of being used as structures for the business of the ice company, equivalent to the intention of the parties in Potter v. Cromwell (supra), that those buildings should be used as a permanent structure for the grist mill for the neighborhood, and in McRea v. Central Nat. Bank (supra), that the premises should be used as a twine factory; and this is emphasized by the fact that it was the original intention of Heermance to purchase the land of Mrs. Upham, as the lease contained an option to the effect that he could purchase it for $8,500. So, it is true, I think, that under the authorities already cited, Mrs. Upham could have successfully maintained an action to prevent the removal of the machinery which had become a part of the realty and appurtenant thereto, inasmuch as it clearly appears that the same could not have been removed "without injury to the building or any portion of it." (Potter v. Cromwell, supra.) The erections became fixtures within the principle of the Watts App. Div.] SECOND DEPARTMENT, MARCH TERM, 1898. Campbell case, above cited, and, therefore, it must be assumed that the statute gave a lien upon the property for the work and materials furnished by the plaintiff, provided the consent of the owner was given to the erection. In examining this latter question we resort to the two leases by Mrs. Upham to Heermance. The first lease provided that Heermance would not assign his lease, nor let or underlet the whole or any part of the premises, "except to Ice Manufacturing Co.;" and the second and more formally drawn paper provided that Heermance would not "assign this lease, nor let or underlet the whole or any part of the said premises, save only to any Ice Manufacturing Company or corporation to whom he shall choose to assign or underlet.” There is uncontradicted evidence that Mrs. Upham admitted that the property was in the hands of one Richardson, a real estate broker at Yonkers, for the purpose of renting or selling, and that he told her that he had seen Heermance; "that he had made an offer to rent the property for the purpose of erecting an ice machine or plant," and "that his offer being satisfactory, she had directed Mr. Richardson to draw up a lease and accept Col. Heermance's offer;" that the first lease was drawn and signed by both of them, and subsequently the second lease was drawn and executed. She also admitted that she knew about the erection of the plant from what was told her about it by Richardson and by her son, and that she had been down in the neighborhood of the property, and had seen the buildings going up, especially the chimney, which she could see at a considerable distance. The son afterward testified that he did not know of any machinery being put in there, and did not go on the premises, but might have seen them from the railroad train, and had told his mother nothing about it. But there is no contradiction of the information given her by Richardson and her admission that she had seen the buildings and the chimney going up. She was not called as a witness to deny either of those facts or to show that she did not know of the performance of some work on the premises; and it may be assumed that, if it was possible for her to deny, she would have been called as a witness. There have been various decisions of the courts as to what constitutes consent in cases to enforce mechanics' liens. Some of them arose on leases, where the covenant was that the lessee might or [Vol. 26. SECOND DEPARTMENT, MARCH TERM, 1898. should erect buildings which, at the termination of the lease, were to become the property of the lessor, or where express consent to the erection was given in the lease. (Mosher v. Lewis, 14 App. Div. 565; Burkitt v. Harper et al., 79 N. Y. 273; Otis v. Dodd, 90 id. 336.) But there is no such explicit provision in the present lease, other than what has already been stated. In Havens v. The West Side E. L. & P. Co. et al. (49 N. Y. St. Repr. 771), at General Term, where the lease contained no provision giving the tenant the right to construct buildings, it was said: "It does not seem to us that it could possibly have been the intention of the Legislature to make the owner of land which he has leased for a long term of years liable for improvements made upon this land for purposes of trade by his tenant. The mere fact that he may know that the tenant contemplates making certain improvements, or applying the property to certain purposes, certainly cannot make the owner liable for the moneys expended by his tenant in the doing of such work. It seems to us that the clear intent of the statute was to prevent the owner of real estate from permitting improvements to be made upon his property from which he is to derive an ultimate benefit, and which, without his consent or acquiescence, could not be made without incurring some obligation to those who have supplied labor and materials for the making of such improvements. But in those cases where the owner has no power to prevent the tenant from making such improvements as he sees fit, and from which the owner can derive no ultimate benefit, it never could have been the intention of the Legislature to make such owner liable, and it is doubtful if they had attempted to do so whether it lies within their power." This case is distinguishable from the present by the fact that here the lease gave an implied consent to an assignment to any ice manufacturing company, and it requires no violent presumption to enable us to decide that the owner knew that the buildings already on the premises were not adapted, without large and important alterations and additions, to the manufacture of ice, and that the lease was taken with that intention and for that purpose. In Cowen et al. v. Paddock (137 N. Y. 188, 193) the court said: "While it is doubtless true that the consent required by the lien law need not be expressly given, but may be implied from the con SECOND DEPARTMENT, MARCH TERM, 1898. App. Div.] duct and attitude of the owner with respect to the improvements which are in process of construction upon his premises, still the facts from which the inference of a consent is to be drawn, must be such as to indicate at least a willingness on the part of the owner to have the improvements made, or an acquiescence in the means adopted for that purpose, with knowledge of the object for which they are employed." It has been frequently held that consent implies a degree of superiority, at least the power of preventing, but it may be said here that the lease was made, to the knowledge of the owner, for the purpose of an ice manufacturing company; that the lease contained an option of purchase, and that she could not have prevented the erection of the plant and buildings in question, as she had given the lessee the right to assign to any ice manufacturing company. Her consent may, therefore, be implied to the erecting of a plant and buildings such as might generally be supposed to be useful or necessary to the operation of an ice manufacturing company. The evidence shows that she knew that the work was going on and did not dissent; that she stood by and permitted the work to proceed. In his decision the learned justice finds that Heermance, the lessee, made a contract with the plaintiff for the work and materials in question, and that." the work and materials required by said contract were used in the erection and construction of said plant upon the aforesaid premises and in the erection and alteration of the buildings upon said premises," and that Heermance, before the completion of the work, "with the consent of the defendant Upham, assigned his said lease to the defendant the Yonkers Hygeia Company, who forthwith entered into possession of said leased premises and were still in possession at the time of the trial hereof" (December, 1896). There was ample evidence to justify this finding. In Husted v. Mathes et al. (77 N. Y. 388), a case to enforce a mechanic's lien, the court said that the owner "was informed of the intended improvement and knew of the work while it was in progress. She received the benefit willingly." In that case there does not appear to have been any written lease, either by the report of the case or the record on appeal. In Nellis v. Bellinger (6 Hun, 560) the son of the owner of the fee erected on the premises a house for his own use, and the owner |