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and 355 Sixth avenue in the city of New York, for the sum of $3,991.49, being the balance due him for labor and material furnished to one Riker, in altering the buildings thereon. These alterations consisted in taking out the party wall on the first and basement floors between two stores, one owned by the appellant, and the other by William B. Riker, and fitting them up as a drug store. The work was alleged to have been done, and the materials furnished, at the special request of the defendant William H. Riker, with the knowledge and consent of the appellant, the owner of number 355, and William B. Riker, the owner of number 353.

The premises of the appellant were owned by her father on the tenth day of November, 1888, and on that day he leased them to William Comyns for the term of ten years from May 1, 1889, at the annual rent of ten thousand dollars, payable monthly in advance. The lease was recorded in November, 1888. The lessee covenanted that he would not assign the lease, under-let the whole, or any part of the premises, or make any alterations therein, without the consent of the lessor, under penalty of forfeiture and damages. The lease also prohibited the use of the premises for the sale of any kind of intoxicating beverages, and provided that the lessee would keep the buildings and sidewalks in good order and condition, including the roof, making all repairs and alterations at his own cost. It further provided that any alterations or improvements made thereon, should, at the termination of the lease, revert to and become the property of the lessor without payment therefor.

The original lessor died January 25th, 1890, leaving a last will and testament, by which the premises known as number 355 were devised to the appellant. On the eighteenth of May, 1891, Comyns assigned his lease to William H. Riker, and the appellant consented to such assignment; she also agreed that the clause in the original lease, relating to the sale of intoxicating beverages, should not apply to the drug business; that Riker might sub-let the upper part of the premises, and should have the right to make alterations and improve

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ments on the building, which should become a part of the premises, and remain thereon at the expiration of the lease as the property of the owner.

On the trial, the referee, in effect, found that all the work and materials furnished by the plaintiff were furnished with the consent of the appellant, and that she consented to the alterations made by Riker. He then held that the plaintiff had a valid lien upon the appellant's premises for the sum of $2,418.44, with interest from January 1, 1892, directed a judgment to that effect, and that the premises of the appellant be sold to satisfy such lien.

The referee refused to find that the appellant had no contract or dealings with the plaintiff in connection with doing any of the work or furnishing any of the materials upon the premises owned by her, although the undisputed evidence was to that effect. He also refused to find that, shortly previous to the execution of the written consent relied upon by the plaintiff, the appellant had an interview with Riker, when he asked her consent to the assignment of the lease, and that Riker then stated to her that he desired to make an archway between the two stores on the ground floor, to raise the ceiling in her store, and agreed that if she would consent, and the store should pass into other hands at the end of the term, he would restore the building to its present condition. He was also requested to find that that was the only proposition made to her for connecting or altering her store, and that she had no notice or knowledge of any intention upon the part of Riker to make any other repairs or alterations upon the building, which was denied. To these findings, refusals to find as requested, and to the referee's decision that her premises were subject to such lien, the appellant duly excepted. She also excepted to his direction of a judgment to that effect.

On the trial the plaintiff called the appellant as a witness, and proved by her that the only changes that were proposed to be made when she signed the paper, giving consent that Riker might make alterations, were the cutting of an arch through the party wall on the first floor and the raising of the

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ceiling, and that she never saw the building or alterations while the work was in progress. The only evidence that was not in corroboration of this testimony was that of one Roome, who at best had a mere impression, and an examination of whose testimony discloses that he had no sufficient recollection of what took place between the appellant and William H. Riker to render his testimony of any value. Indeed, his testimony was to the effect that he had no clear recollection about anything that took place at that time.

The learned referee found that the extent of the appellant's information as to the alterations made was not conclusively shown by the evidence, but that he did not regard her knowledge on that subject as material for the reason that she might have ascertained what alterations were to be made. This finding was also excepted to.

We think the evidence of the appellant to the effect that she never knew or heard of any of the alterations made, except the raising of the ceiling, must be regarded as suffi cient to establish that fact. The plaintiff cannot claim that the referee had a right to disregard her evidence upon the ground that she was an interested party because he called her as a witness and proved these facts by her, thereby assuring her credibility as a witness upon that subject. While he might have shown the facts to be different, he could not impeach or deny her credibility. Under these circumstances, we think those facts must be regarded as established, that the learned referee erred in refusing to find them upon the appellant's request, and in finding that the appellant consented to the alterations made. Nor do we think he was justified in holding that it was immaterial what information she possessed in regard to the alterations made, because she could have ascertained what was being done or what Riker proposed to do. These errors require a reversal of the judgment, unless it can be held that they were immaterial and could not have affected the result.

Thus, we are brought to the consideration of the question whether, if the appellant had no knowledge that Riker intended.

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to make any alterations, except those mentioned, or that he was making others, her property can be made subject to a lien for all the alterations made, upon the sole ground that she gave the written consent referred to, without including in it a limitation to the effect that he could only cut the arch and raise the ceiling.

At this point, it is proper to consider the circumstances. under which this consent was given, and the object sought to be accomplished. The original lease which was assigned to Riker contained a covenant on the part of the lessee that he would not make any alterations without the consent of the lessor, under penalty of forfeiture and damages. Obviously, the purpose of the written consent was to avoid the effect of that covenant, and thus prevent a forfeiture. Such being the purpose, the relation of the parties after the consent was the same as though no such covenant had existed in the original lease, and their rights the same as they would have been under the original lease if it had contained no covenant against making alterations. All that can be said to have been effected by that consent is that it permitted Riker to make alterations without incurring the forfeiture provided for in the original lease. It is obvious that such was its sole purpose.

Assuming, then, that Riker possessed the right, under the lease and the appellant's consent, to make alterations in her building without forfeiture, does it follow that thereupon her property became liable for the payment of any amount that might be expended in such alterations without her knowledge and without her giving any other consent? I think not. It cannot be seriously contended that the appellant's written consent had any reference whatever to a mechanic's lien, or to any labor or materials furnished by the plaintiff.

The statute under which the plaintiff seeks to establish a lien upon the appellant's property in effect provides that any person who shall hereafter perform any labor or furnish any materials which have been used in altering or repairing any house or building, with the consent of the owner, may, upon filing the notice of lien prescribed, have a lien for the princi

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pal and interest of the price and value of such labor or materials upon the building or premises upon which the same may stand. The consent referred to in this statute evidently is a consent of the owner to the performance of labor, or the furnishing of materials for the purpose named. The simple fact that the appellant gave Riker 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.

In Spruck v. McRoberts (139 N. Y. 193, 199), Judge O'BRIEN, who delivered the opinion of the court in that case, said: "When a contractor, mechanic or materialman proposes to erect a building, or to expend labor or material upon land under a contract with a person in possession, it is incumbent upon him to inquire and to assure himself of the fact that the person with whom he contemplates making the contract, or for whose benefit he is about to employ labor or materials, has, in fact, such an estate or interest in the land as will enable him to assert a statutory lien. If he fails to do this, or is mistaken in his calculations and contracts with a person without title, the statute does not impress a lien upon the estate of the true owner unless he is in some way connected with the contract or has given his consent to the expenditure in such manner as to bind him within recognized principles of equity."

In Cowen v. Paddock (137 N. Y. 188) it was held that the facts from which the inference of consent may be drawn must be such as to indicate 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 were employed.

Thus it seems that the requirements of this statute as to consent are not met by a mere general agreement to the effect that a third person may, at his own expense, make alterations in a building occupied by him. The statute requires more.