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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 his 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

would have justified a decision by the Special Term In case the vendor in an executory contract has no in favor of the plaintiff. The statute, sec. 3, chap. authority to require the vendee to build, alter or 418, Laws of 1897, provides: "A contractor, sub-repair, and has no power to prevent him from doing contractor, laborer or materialman, who performs so, his interest cannot be charged with a mechanic's 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 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¦ amounted to a consent by her that the plaintiff on the subject, required to keep the premises in ordinary repair (1 Taylor on Landlord and Tenant, sec. 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 because he knows that 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 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 Vesseller 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.

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 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 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 pre-requisite 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

or

rule or requirement by the city officials that it should the appellant presents simply the question of fact be made by the owner. We imagine that the tenant, whether the work was beneficial or not. Thereas an occupant of the land, could have compelled fore, a trial court might have found that the appelthe 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 National Wall Paper Company v. Sire (163 N. Y., 122), to reverse the judgment of the Special Term. We think that the case is 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 order of the Special Term affirmed, with costs.

lant 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., in Vosseller 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 as to the affirmance of the order in favor of the defendant Friederich.

Ordered accordingly.

Notes of Cases.

Illegitimate Child - Transfer of Custody by Mother - Validity. In Ousset v. Euvrard, decided by the Court of Chancery of New Jersey, in May, 1902 (52 Atl. 1110), it was held that a transfer from the mother of an illegitimate child to the putative father of all the mother's right of custody is valid as against the mother, though it may be void as against the child, if the interests of the child so require. The court said in part:

"Ordinarily, the custody of an illegitimate child is with its mother; she has the right to the custody of the child, and she is charged with the duty of its support. She can ordinarily assert her right of custody against the father, to take the child from the father; and the court will aid her, and will recognize and vindicate her right as mother. The father has hardly any right at all of custody, if he has any at all which the law recognizes. His position is largely that of a stranger, and outsider, having no natural relation to the child or children. He may be

chargeable for the support of the child, his illegitimate offspring, under statutory proceedings; but if those proceedings are taken, and he is compelled to furnish support for the child, it is on the theory that the child otherwise would be a public charge; and the proceedings which would result in an order of filiation uniformly leave the child in the custody of the mother, and the putative father is made liable to furnish support to the child while it is in the custody

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 fourteenth. The lease from the appellant to the exhibition company bears date April 10, 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 tenth, 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. "Now, then, in this case, these people, who were We may concede that some of the work done by that living together unlawfully, whether their motives respondent did not create any permanent benefit to were good motives or neutral motives, or whatever the land, but a portion of it, consisting of removing the motives may have been, severed their relations stone and grading, was beneficial to the estate. Here and undertook to live apart. These children had to again the case in the aspect most favorable to be provided for. I know of no reason why, when

of the mother."

the mother and father of illegitimate children separate, as in obedience to the law of the State and of the moral law they are bound to do, and they remain bound to take care of the offspring of their illicit cohabitation, I see no reason why the custody of the children should not be awarded by contract to the one or the other of them. I see no reason why the mother of the illegitimate children should not say to the father, 'Take these children; you can do better for them than I can.' It is true that if nothing is done, if no arrangement is made, the law gives the custody of the children to the mother, the main reason being that there is no father of an illegitimate child; so the custody of the child is given, as a matter of natural right, to the mother. I said that was the main reason. No, I will correct that. There is a strong reason in addition; the mother has borne these children, and her relation to them is more tender than that of the man who procreated them and who is not their recognized father. In the absence of any agreement between the parties, there are plain reasons - important reasons which underlie the law which gives the custody of the child to the mother. But I do not see why an agreement made by the mother transferring her right of custody - not undertaking to transfer absolutely her duties as against the children, but transferring her right of custody to the father, should not be upheld by the courts. In the absence of any authority to the contrary, I shall hold that it was competent for these people, in the situation in which I have described, to enter into an agreement like that proved here, by which the mother transferred the custody of the children to the putative father."

cannot even do this without violence to the facts, for there has cropped out in the evidence, as stated, the information that the dead man put in money for which no credit was given him in this proposed settlement. How much is not shown.

"This is not a case where A's claim against B is considered and adjudged. It is an accounting in equity, in which it is the duty of the chancellor to as accurately ascertain and state B's account as A's. Nor is it possible in this class of cases to truly state A's claim, however clearly A's side may be proven, unless B's side is shown equally clearly. A settlement of a partnership necessarily means the statement and adjustment of all the accounts of all its members. If appellee is injured in fact by this state of affairs, it must be manifest that the cause of it is, not that the court adjudges the facts erroneously, but rather that, because of an absence of necessary facts, the court cannot adjudge at all. This absence of facts is due to the negligence or misfortune of the parties. The court will not take the hazard of guessing at a solution, in order to relieve one of the parties. Such states of case in the courts have given rise to the principle that, where the partners fail to keep books or fail to keep such books as will show the status of the firm's affairs, and they postpone a settlement till one of them dies, or till important witnesses die, or till necessary records are lost or destroyed, equity will not interfere to relieve such misfortune. It will be assumed that the partners have themselves settled their affairs, or that the affairs have so settled themselves as to be substantially satisfactory to the partners (Bradford v. Ware's Ex'r, 6 Ky. Law Rep. 304; Hall v. Clagett, 48 Md. 223; Stiles' Adm'r v. Riggs, 10 Ky. Law Rep. 239; Hyatt v. Kennedy, 9 Ky. Law Rep. 860; Robbins' Ex'r v. Robbins, Ky., 1 S. W. 152; Wilson's Adm'r v. Potter, Ky., 42 S. W. 836).

Settlement of Partnership Accounts - Failure to Keep Proper Books of Account.- In Garnett v. "By the laches of the plaintiff conditions have Wills, decided by the Court of Appeals of Kentucky in September, 1902 (69 S. W. 695), it was held that become so altered that the court cannot now proceed where partners had been equally culpable in failing to a judgment in this case with that degree of to keep proper books of account, and have post-accuracy which a court of conscience is bound to observe. It will not grope its way in the dark, poned a settlement until one of them has died, or risking the rights of the decedent's estate upon inuntil important witnesses have died, or until necescomplete evidence, and possibly erroneous sary records have been lost or destroyed, a court conjecture." of equity will not attempt to settle the partnership accounts. The court said in part:

Late Decisions.

"Now, what are we to do amidst such confusion and uncertainty? It may be that Wills has paid into the firm more than Garnett, and that Garnett drew EARNINGS OF ILLEGAL COMBINATION.- Profits held out more than Wills. But that fact is not shown by a third person for two corporations, which have in a suit for settlement, in the absence of books of agreed to contribute capital to carry on a joint busiaccount, by merely showing an aggregate of what ness under an assumed name, the net profits to be one partner paid in, and assuming, in the absence equally divided, has been held by the Supreme Court of all evidence on the other side, the other partner of Ohio, in Geurinck v. Alcott (63 Northeastern being dead, that he paid in nothing. We are neces- Reporter, 714), to be the individual property of each sarily left largely to speculation - even though ap- corporation, and that the money can be reached by pellee's proof were more convincing than it is — garnishment, even when it is the earnings of an for we must needs then speculate that the other illegal combination to regulate prices and control partner paid in nothing, and drew out and applied to the output of a certain commodity. The court holds his own use all that is charged against him. We' that two corporations cannot agree to form a part

nership, and that the earnings of the combination are simply credits in the hands of a third party which are due to the respective corporations.

RIGHT TO DIVERT RIVER.- The Supreme Court of the United States, in an original proceeding between the States of Kansas and Colorado (22 Supreme Court Reporter, 552), has decided that it CONFIDENTIAL COMMUNICATIONS.- The Court of will take cognizance of a controversy presented by Appeals of Colorado has decided in the case of a bill whose averments question the right of one Woodmen of the World v. Loeher (68 Pacific Re-State to wholly deprive the other of the benefit of porter, 136), that communications between a physi- water from a certain river which rises in the first cian or surgeon and his patient are not privileged unless the physician is one who has been licensed to practice in that State. The decision is made under General Statutes, section 3649, providing that a physician duly authorized to practice shall not, with out the consent of his patient, be examined as to any information acquired in attending the patient.

State and flows through the second. The State of Kansas sets forth that the State of Colorado has partially diverted the water from the Arkansas river, and that it is contemplating wholly diverting this stream, to the great injury of citizens of Kansas, who have settled along the banks of the same. In order that the case may be fully before the court, it overrules the demurrer and grants the State of Colorado leave to answer.

DEADLY WEAPONS.-The Supreme Court of Mississippi, in the case of State v. Simms (31 Southern Reporter, 907), has judicially decided that a brick, BOYCOTT. An important decision of the Supreme when properly manipulated, is a deadly weapon, in Court of Missouri is that of Marx & Haas Clothing spite of the fact that it is not specifically mentioned Co. v. Watson (67 Southwestern Reporter, 391), in in the Code, making it an offense to carry concealed which the court holds that an injunction will not deadly weapons. The court holds further that if the issue to restrain the boycotting of the plaintiffs' instrument, whatever it is, kills, there is a strong business. The United Garment Workers, empresumption that it is deadly, and it is for the jury ployes of plaintiffs, instituted a boycott, and cirto finally determine this question upon the proof. culated petitions urging customers to cease their dealings with plaintiffs, unless the demands of the union were acceded to. An attempt was made to enjoin them from continuing these acts, on the ground that they were abusing their privileges under the Bill of Rights, guaranteeing to every person freedom to say, write, or publish whatever he will upon any subject, being responsible for all abuse of that liberty, and that plaintiffs were without adequate remedy at law to prevent this abuse, owing to the insolvency of the defendants.

ANTI-TRUST LAW.- The Supreme Court of Texas, in the case entitled State v. Waters-Pierce Oil Co. (67 Southwestern Reporter, 1051), acting upon the recent decision of the Supreme Court of the United States in the Connolly Case, heretofore noted in this column, has held that the anti-trust law of Texas is unconstitutional, on the ground that it attempts to exempt from its provisions live-stock and products in the hands of the producers, and also labor organizations formed for the purpose of maintaining a standard of wages. The law is announced as repugnant to the 14th amendment to the Constitution of the United States, relating to the equal protection of the laws. The related case of State v. Shippers' Compress and Warehouse Co. (67 Southwestern Reporter, 1049), decided at the same time, will also be found of interest.

LIABILITY OF TELEGRAPH COMPANY FOR NONDELIVERY OF MESSAGE.-The Supreme Court of Texas has held, in the case of Western Union Telegraph Co. v. Cobb (67 S. W. Rep. 87), that the delivery of a message by a telegraph company to the clerk of the hotel at which the addressee lives is not a sufficient compliance with its contract to deliver, as the mere relation of hotel keeper and boarder

RIGHT OF STATE TO PREVENT DESTRUCTION OF RAILWAY.- An action by the State of Wisconsin to prevent the destruction, by a receiver appointed by the federal court, of a railroad lying entirely

ACTION AGAINST LABOR UNION FOR PROCURING creates no authority in the former to receive teleDISCHARGE. The case of National Protective Asso-grams addressed to the latter, and that the hotel ciation of Steam Fitters and Helpers v. Cumming clerk has no implied authority from the guests of (63 N. W. Rep. 369) is an action brought by memthe hotel to receive telegrams for them. bers of the Steam Fitters Union, who were discharged because members of a rival union refused to work with them, and notified their employer that a strike would be ordered unless such servants were discharged, the intent being to secure the employment only of the members of the rival union. The within the State, was considered by the Supreme court holds that no action will lie in such case, as an employer has the right to hire or discharge at will, and the workman has the right to work or to refuse to work at will and no liability attaches because the employer discharged simply at the request of the rival union.

Court of Michigan, upon the petition of the receiver to remove the proceedings to the federal court (State v. Frost, 98 Northwestern Reporter, 915). Prior proceedings in this case have been noted in this column. The court holds that a proceeding by the State, even in its sovereign capacity, to accom

plish a purpose other than the enforcement of its laissez faire contingent that the time has come for penal laws, is of a civil nature; also that it is suffi- action. Fair play and common honesty are outciently shown that the matter in dispute exceeds raged every day under its iniquitous provisions. $2.000; and, further, that a controversy in which is All the talk about giving it a further trial and questioned the power or duty of a federal receiver seeking to amend, rather than repeal it, is out of to perform acts expressly commanded is one aris- place, it seems to me. The law is utterly bad and ing under the Constitution of the United States; pernicious, both in principle and practice. It works and that for these three reasons the controversy innumerable hardships and injustices, giving opporshould be removed to the United States Circuit tunity to the circuitous and the crafty to continue Court. their operations almost ad libitum, and it should be repealed without any more delay than is necessary ILLINOIS ANTI-TRUST LAW.—The Anti-Trust Law to get it before the law-making body. There never of Illinois has recently been considered by the was any real need for its enactment, or demand Supreme Court of the United States in the case of for it, except a fictitous one fostered by those who Connolly v. Union Sewer Pipe Co. (22 Sup. Ct. sought to take advantage of its provisions to enrich Rep. 431) and held to be unconstitutional in that themselves, either by getting the best of their a discrimination is made in favor of agricultural creditors or through the big fees which its adminproducts or live stock in the hands of the producer istration affords. I hope your influential JOURNAL or raiser, which fact makes the act repugnant to will inaugurate a crusade against this pernicious the provisions of the fourteenth amendment to the legislation and continue it until the desired end is United States Constitution in respect to equal proreached. tection of the laws. This decision is consistent with prior decisions of the Supreme Court of the United States and of the State Supreme Courts in construing anti-trust laws which attempt to discriminate in favor of the farmer. The Texas AntiTrust Law has recently been reported to have been invalid in accordance with this decision of the Supreme Court of the United States.

LEGALITY OF GRADUATED LICENSE TAX.- The license law of Pennsylvania was construed and sustained by the United States Supreme Court in the case of Clark v. City of Titusville (22 Sup. Ct. Rep. 382). This law imposes a license tax upon merchants, by which they are divided into classes according to the amount of their sales, each class including all whose sales range between a certain minimum and maximum amount. The court holds that this is not a violation of the equality clause of the fourteenth amendment to the United States Constitution, although the result is to make persons in different classes pay different rates, and also to make those in the same class pay at a different ratio if the amounts of their sales differ. The court holds that the rule does not require exact equality of taxation, but only that the law imposing it shall operate on all of a class alike. The tax is one on the privilege of doing business, regulated by the amount of sales, and is not repugnant to the Constitution of the United States.

Correspondence.

REPEAL THE BANKRUPTCY LAW!

To the Editor of the ALBANY LAW JOURNAL:

The recent action of the Bankers' Association of

the City of New York in calling for and urging the speedy repeal of the present Bankruptcy Law, ought to convince the doubters, the undecided, and the

New York City, October 23, 1902.

HONESTY.

THE THANKSGIVING TURKEY.

How often I think of the dinners I relished

When I was a youngster, far back on the farm; How often, by time and by distance embellished, The thoughts of those dinners my memory charm. But Thanksgiving dinner, the best of all dinners, Whose sumptuous bounty I sadly recall,

Embraced every good thing for saints and for

sinners,

The Thanksgiving turkey the best of them all.
The Thanksgiving turkey, the fat, juicy turkey,
The well-seasoned turkey was best of them all.
The 'possum was sweet; the potatoes around it

Were simply delicious - the gravy was fine;
The pies and the puddings were great, and I found it
I tasted the dainties-the cakes were the rarest;
A source of much pleasure to sample the wine.
The custards the best that my mother could make;
But better than these, and I loved it the dearest,
Was Thanksgiving turkey, the brownest she'd
bake.

The Thanksgiving turkey, the fat, juicy turkey,

The well-seasoned turkey that kept me awake.

But, now that the days of my boyhood have ended,
My youthful career is a thing of the past,
My feet far away from the farm-house have wended
And landed me here in the city at last.
I'm seated to-day at a boarding-house table,
Where hash is the principal food that we eat,
And mem'ries of boyhood seem more like a fable
Than something that once was reality sweet.
Oh. I yearn for the turkey, one slice of, the turkey,
The Thanksgiving turkey that nothing could beat.
Lawrence Porcher Hext, in Nov. Lippincott's.

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