character that they may be easily separated from the realty proper, and were not, therefore, at first, nor until comparatively recently, considered proper subjects for a mechanic's lien. Gradually the strictness of the rule in this connection was relaxed, however, and a determination finally established, that in the case of specially designed electric lighting fixtures applicable to a special purpose and especially made to harmonize with, or become a definite and important part of, the structure proper, a lien would be allowed.1 18 The New York Legislature in 1914 took the final step, in the development of the lien doctrine in the matter of lighting fixtures, by specifically providing, that a lien might be had for services rendered in furnishing and installing electric or gas lighting fixtures. In making this provision, the statute made no distinction between specially designed and ordinary fixtures. As the law now stands, therefore, this distinction has been abolished and a lien may be had for the manufacture and installation of fixtures generally. The terms of the amendment are as follows, the portion italicized being the matter added by the amendment of 1914: "Improvement. The term "improvement," when used in this chapter, includes the erection, alteration or repair of any structure upon, connected with, or beneath the 18 Wahle, etc., Co. v. 59th St. & Madison Ave, Co., 153 N. Y. A. D. 17; Embury v. 42d St. & Madison Ave Co. et al., N. Y. surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement, and shall also include any work done or materials furnished in equipping any such structure with and chandeliers, brackets or other fixtures or apparatus for supplying gas or electric-lights." "19 It is interesting to note that, in at least one jurisdiction, a mechanic's lien has been allowed for the furnishing of coal to heat and light the building.20 This seems logical, inasmuch as the coal is certainly, under such circumstances, a material which has been used for, and entered into, the improvement of the real property. § 88. Consent of Owner.-By reason especially of the modern development of apartments, office buildings and similar properties, the importance of the right to a lien, where the work has been done for a tenant and not merely for the owner direct, has been emphasized more and more or recent years. Where the work is done at the request of a tenant, the lien may be enforced, if it be shown that the owner has consented to and approved the doing of the work in the expectation that he will derive benefit therefrom,21 and this irrespective of whether there is or is not a direct contract relationship between the owner and the contractor. This doctrine proceeds 19 New York Laws, 1914, ch. 506. 20 Crowell Lumber etc., Co. v. Ryan Co. (Neb.), 193 N. W. 609. 21 Kerwin v. Post, 120 N. Y. A. D. 179. "upon the idea that he who furnishes materials for or does labor upon a building should be reimbursed to some just extent out of the improvement, of which the owner gets the benefit, . . . All that the Statute requires as the condition of the lienor's right to such reimbursement is that the labor shall be done upon or the material furnished for the building in process of construction, with the assent of the owner or of the contractors.' 22 If it be shown that the owner did not consent to the work being done, but that, on the contrary, the work was contracted for by the lessee entirely on his own account and after the owner had specifically refused to bear any of the expense thereof, the lien will not be enforced.23 The consent of the owner need not, necessarily, be express, but may be implied, as well. If he approve the work and receive the benefit accruing therefrom, he will be held to have impliedly consented that it be done. He can not stand idle and allow the work to be done and the benefit thereof to accrue to his property and then turn about and attempt to defeat the lien by the plea that his consent has not been given.24 Stating substantially the same rule, in slightly different phraseology, it has been said that the lien statute in New York "proceeds upon the equitable principle that one who knowingly receives the benefit of the labor or property of another in the form of improvements 22 Pell v. Baur, 133 N. Y. 377. 23 McNulty v. Offerman, 164 N. Y. A. D. 949. 24 National Wall-paper Co. v. Sire, 163 N. Y. 122; and see Otis v. Dodd, 90 N. Y. 336. upon his land, ought to have his property subjected to a lien for the value of such improvements." " 25 These general statements must, however, be read in the light of the statements and citations which precede them. The reader must bear in mind the differing requirements of various jurisdictions, and the facts which must be shown to establish such an acquiescence on the part of the owner as will legally be deemed to be tantamount to a consent on his part to the work involved. 25 Butler v. Flynn, 51 N. Y. A. D. 225; and see also Nellis v. Bellinger, 6 Hun. N. Y. 560. CHAPTER III THE LIEN OF THE CONTRACTOR § 89. Classes of Lienors.-In considering the right of the contractor, or subcontractor or material-man or mechanic, to a lien, it must, imprimis, be recognized that there is a clear distinction in the lien laws between these various classes. The rule has been stated to be that if the claimant's "charge is for materials alone, then he is a material-man; if his charge is for work and labor in putting the materials in the building, then he is a contractor for the erection of the building;" but this rule has later been held too narrow, in that one furnishing and placing in the building materials in finished form should be allowed to claim as a material-man just as readily as one furnishing raw materials alone.2 Where the contract under which the lien is claimed is a direct contract between the owner and the lien claimant, and involves not only the furnishing of materials but their installation or incorporation in the building as well, the question of whether the person between whom and the owner the contract is made, shall be considered the original contractor or material-man, is largely 1 Vice Chancellor Stevenson, in Beckhard v. Rudolph, 68 N. J. Eq. 315. 2 Beckhard v. Rudolph, 68 N. J. Eq. 740, reversing 68 N. J. Eq. 315, supra. |