the lessee only, and there was no allegation that a lien was claimed against the owner of the fee, and it did not appear that the value of the premises was increased by the repairs, or that the owner ever took any part in directing them, or was consulted in regard thereto, or that he was bound to make such repairs. Held, that the complaint stated no cause of action against the owner of the fee, so as to render either him or his property liable for the labor and materials furnished, though it alleged that he consented thereto.

Appeal from special term.

Action by John B. Ross against John Simon, Ignatz Schmitt, Barbara Schmitt, and others, to enforce a mechanic's lien.

The complaint alleged substantially as follows: First, that defendant Simon was and is now the owner of certain premises, against which the lien is claimed; second, that said defendant, on April 28, 1888, leased said premises, and house thereon, to defendant Ignatz Schmitt, for 21 years from May 1, 1888, and that said lease was duly recorded; third, that defendant Ignatz Schmitt, by assignment dated September 1, 1888, and recorded on the same day, assigned said lease to defendant Barbara Schmitt; fourth, that defendant Ignatz Schmitt was at the time hereinafter mentioned the duly-authorized agent of the defendant Barbara Schmitt; fifth, that subsequent to the making of said lease a contract was entered into between the defendants Allen B. Muir and Barbara Schmitt for furnishing materials, and making certain alterations and repairs of the house on said premises, and for which Barbara Schmitt agreed to pay Muir the sum of $2,175; sixth, that Muir performed the conditions of said contract; seventh, that on or about September 17, 1888, plaintiff entered into another contract with Muir, to do certain other work and furnish other materials on and for the house on said premises, for the sum of $245; eighth, that, in pursuance of said contract, plaintiff did the work and furnished the materials specified; ninth, that on account of said contract there is a balance due plaintiff of $120; tenth, that defendant Simon, the owner, had full knowledge of the work, and consented to the same, and to the performance of the labor and the supplying of the materials by plaintiff; eleventh, that a notice of lien was filed on or about the 8th day of November, 1888; twelfth, that within 10 days after the filing of said notice a copy thereof was served upon the defendants Simon and Barbara Schmitt; thirteenth, that the other defendants have certain rights and interests in the said premises, and plaintiff demands that he be adjudged to have a lien on said premises for the sum of $120 and interest. Defendant Simon demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against him. The demurrer was sustained, and plaintiff appeals.

Argued before EHRLICH and McGown, JJ.

James C. Delamare, for appellant. Stephen Philbin, for respondent Simon.

MCGOWN, J. This action was commenced on or about the 16th day of September, 1889, to enforce a mechanic's lien against the premises No. 2007 First avenue, (notice filed November 8, 1888,) owned by the defendant Simon, under the mechanic's lien law, (chapter 342, Laws 1885.) Section 1 of said act provides as follows: "Section 1. Any person * * * who shall hereafter perform any labor or service, or furnish any materials, * * * in erecting, altering, or repairing any house, * * * building, * * * with the consent of the owner, as hereinafter defined, or his agent, or any contractor, * * or any other person contracting with such owner to erect * as aforesaid, * * * * *have a lien upon the lot or premises * * upon which the same may stand, * * * to the extent of the right, title, and interest at that time existing of such owner, whether owner in fee or of a less estate, or whether a lessee for a term of years, * * or of the owner of any right, title, or interest in such estate." Section 1 of the act above referred to was amended by chapter 316

*

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may

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* or person in pos

of the Laws of 1888, which took effect on May 17, 1888. It does not appear from the complaint herein whether the work and materials claimed for were done and furnished before or after said amendment took effect. It is immaterial however, as the above amendment does not materially change the provisions of section 1 of the act first cited, or affect the question raised herein. Conceding all the facts stated in the complaint, it does not set forth any cause of action against the defendant Simon. It does not appear that the premises of the defendant Simon were in any manner benefited, or that the value thereof was increased, by the alterations and repairs alleged to have been done on the building, or that he ever took any part in, advised, or gave directions as to the method of construction of, the alterations or repairs, as in Otis v. Dodd, hereinafter cited. Section 4 of the act hereinbefore referred to provides for the filing of a notice of lien "containing the name of the claimant, * * * with the name of the owner, lessee, session of the premises against whose interest a lien is claimed." Paragraph 11 of the complaint recites "that a copy of said lien is hereto annexed," and therefore the notice of lien is made part and parcel of the complaint. The notice of lien filed herein recites as follows: "That the name of the owner of the leasehold estate against whose interest a lien is claimed is Ignatz Schmitt, and the owner of the fee of said land is John Simon." There is no allegation in the complaint that any claim is made, or that any lien is claimed or asked for, against the interest of the defendant John Simon, the owner; but, on the contrary, a claim is made against, and a lien is claimed only against, the interest of Ignatz Schmitt, the lessee in the leasehold estate. Nor does it appear that the defendant Simon, the owner, ever took any part in the direction or in the making of the alterations or repairs, or was obligated to make such repairs, or that he was consulted in relation thereto. The mere allegation, in the tenth paragraph of the complaint, that the defendant Simon "consented to the same, and to the performance of the labor and the supplying of the materials by this plaintiff," was not, in the absence of any allegation of claim in the complaint, sufficient to constitute a cause of action against the defendant Simon, the owner, or to make him personally liable, or his property liable, for such repairs; no claim having been made against him, or lien claimed upon his interest in the lands in the complaint. Simon, the owner, was the landlord; defendant Ignatz Schmitt was the tenant; and, in the absence of any express covenant to repair or make alterations on the part of Simon, the landlord, the tenant Ignatz Schmitt, and his assignee, being in possession as tenants, were legally bound to make all repairs. The tenant was in possession under the lease; and Simon, the landlord, had no right to interfere with, object to, or to stop the work. His refusing to consent thereto, or his objecting to the repairs, would have been of no avail, unless, possibly, he objected to the repairs, in case his tenant was doing a great injury to his property. Had Simon, the landlord, in passing the premises, discovered that his tenant had men employed in painting the house on the premises, would he have had any right to interfere with the work? And it cannot seriously be claimed that, in such case, had the tenant refused to pay the workmen employed by him under a contract to paint the house, the contractor could have or enforce a lien against the owners of the premises for the painting. Simon, the owner, did not become a party to the contract made by the lessee with the plaintiff; and only the title or interest of the lessee in the premises could be affected by the lien. The mere consent of the defendant Simon to the repairs and alterations made by his lessee did not obligate him, either legally or mor ally, to pay for the same, nor did it subject his interest in the premises to the lien. Jones v. Manning, 6 N. Y. Supp. 339, (Gen. Term, Sup. Ct., Fifth Dept., June, 1889.) In Otis v. Dodd, 90 N. Y. 336, (1882,) Dodd and Ross, the owners of the fee, leased certain real estate to the Union Portland Cement Company, for the term of seven years, with covenants of renewal. The com

pany covenanted with the lessors, at its own expense, to construct and complete upon the real estate some buildings and other improvements; and that such buildings and improvements should immediately attach to the freehold, and become part of the demised premises, and not to be removed during, or at the expiration of, the lease. The company contracted with the plaintiff to perform labor and furnish materials in the construction of the buildings. During the progress of the work, the lessors, the owners of the fee, came upon the premises, and advised about the location of the structures, and gave some directions as to the method of their construction. An action was brought to enforce the lien against the property, under chapter 379, Laws 1875. The lien was held good, on the ground that the work and materials were furnished with the consent of the owners, who came upon the premises, and advised and gave directions as to the method of construction of the buildings upon the lessors' premises, which were to be benefited, and the value thereof increased, by the construction by the lessee, upon the lessors' premises, of the buildings and other improvements, which, by the terms of the lease, were immediately to attach to the freehold, and become part of the demised premises, and were not to be removed, at the expiration of the lease, therefrom. Judgment affirmed, with costs. All concur.

RONNIE v. RYDER et ux.

(City Court of Brooklyn, General Term. December 23, 1889.)

1. LIBEL AND SLANDER-PLEADING-COMPLAINT.

A complaint which alleges in one paragraph "that defendants are, and at the time of committing the grievances hereinafter mentioned were, husband and wife," and then sets forth three alleged slanders, in the three following paragraphs, sufficiently charges that defendants were husband and wife at the time of utterance of the second and third alleged slanders.

2. SAME-SLANDEROUS WORDS.

Defendant in an action for slander was alleged to have said: "I am glad Mrs. Ronnie [plaintiff] is out of my premises; she is a dangerous woman, and inclined for men. Held, that the court properly refused to dismiss the complaint on the ground that the words there imputed are not slanderous.1

Appeal from trial term.

Action by Jessie D. Ronnie against James Ryder and Catherine Ryder, his wife, to recover damages for slander alleged to have been uttered by Catherine Ryder on three occasions. Plaintiff pleaded three causes of action. Defendants' motion to dismiss, as to second and third causes of action, was denied. Judgment was entered for plaintiff, and a motion for new trial was overruled, and defendants appeal.

Argued before OSBORNE and VAN WYCK, JJ.

Wm. J. Courtney, for appellants. H. C. Mackrell, for respondent.

OSBORNE, J. Plaintiff brought this action to recover damages for slanders alleged to have been uttered on three different occasions against her by the defendant Catherine Ryder, and the same were pleaded as three separate and distinct causes of action. The defense was a general denial. Plaintiff obtained a verdict of $500. Rarely has an appeal come before us in which there was so little merit. There are but two exceptions in the whole case. Plaintiff alleged in her complaint, paragraph 3, "that defendants are, and at the time of committing the grievances hereinafter mentioned were, husband and

1 Words imputing want of chastity to a woman are slanderous and actionable per se. Upton v. Upton, 4 N. Y. Supp. 936. See, also, Davis v. Sladden, (Or.) 21 Pac. Rep. 140; Kelly v. Flaherty, (R. I.) 14 Atl. Rep. 876. In general, as to what words are slanderous, see Seery v. Viall, (R. I.) 17 Atl. Rep. 552, and note; Rosewater v. Hoffman, (Neb.) 3s N. W. Rep. 857, and note; Woodruff v. Bradstreet Co., (N. Y.) 22 N. E. Rep. 354, and

note.

wife."

The complaint then proceeds to set forth the three alleged slanders as separate causes of action, constituting paragraphs 4, 5, and 6 of the complaint. After plaintiff's counsel had opened, defendants' counsel moved to dismiss the complaint as to the second and third causes of action, on the ground that the complaint fails to charge that defendants were husband and wife at the time of the second and third causes of action. The court denied the motion, and ordered that the complaint be amended so as to charge, in the second and third causes of action, that defendants were husband and wife at the time of the alleged uttering of the words therein charged. To this ruling defendants' counsel excepted. We think that the allegation of paragraph 3 of the complaint, above quoted, was broad enough to cover all the charges; but, even if this were not so, the court, under section 723 of the Code of Civil Procedure, had full power to make the amendment, and the defendants were not surprised or prejudiced thereby.

The

The third cause of action was that the defendant Catherine Ryder was alleged to have said: "I am glad Mrs. Ronnie [plaintiff] is out of my premises; she is a dangerous woman, and inclined for men." After plaintiff had rested, defendants' counsel moved that the court take from the jury this cause of action, on the ground that the words there imputed are not slanderous. motion was denied, and defendants excepted. We think that the court was clearly right in denying defendants' motion. If there was any doubt as to whether the words proven imputed unchastity, then it was a question for the jury to determine in what sense the words were uttered and understood. Hayes v. Ball, 72 N. Y. 418. This, however, the defendants' counsel did not ask for. He sought to strike out the whole cause of action, and we do not think that the court would have been justified in so doing. For the above reasons we are of the opinion that the judgment and order denying motion for a new trial should be affirmed. Judgment and order denying motion for a new trial affirmed, with costs.

PALMER v. CITY OF BROOKLYN.

(City Court of Brooklyn, General Term. December 23, 1889.) LANDLORD AND TENANT-COVENANTS-ACTIONS BY EXECUTORS.

Where the owner of demised premises dies during the term, her executor cannot recover for breach of a covenant by the lessee to surrender the premises at the expiration of the term in good condition, as such breach occurs at the expiration of the term, and the owner of the land at that time, only, can recover therefor.

Appeal from trial term.

Argued before VAN WYCK and OSBORNE, JJ.

Almet F. Jenks, for appellant. Justus Palmer, pro se.

VAN WYOK, J. This action was brought to recover damages for a breach of a covenant to surrender at the expiration of the term, in the same condition as when possession was first given, the premises demised in the lease of Christine L. Palmer to the defendant, dated April 23, 1886, for the term of one year from May 1, 1886. This cause was tried by the court without a jury. Judgment was rendered in favor of the executor of Christine L. Palmer for $500 damages and $127.92 costs, amounting to $627.92. From this judgment the defendant appeals. Christine L. Palmer died September 11, 1886, having duly devised her estate in these premises to Justus Palmer, her husband; but before her death she made a deed of the premises to Ethan B. Palmer, and deposited it in escrow with Justus Palmer, to be delivered to the grantee, Ethan B. Palmer, after the expiration of the term of the lease to the defendant. The premises were used by defendant as a police station house, and a short time before April 30, 1887, the last day of the term for which the premises were leased, the police captain in charge of that precinct informed

Justus Palmer that the city wanted the premises for several months longer, as the new station-house, in course of construction, was not then quite completed. To this proposition Justus Palmer testifies he gave his assent; and the city continued in possession of the premises during the months of May and June, 1887, and paid rent therefor to the owner. On May 5, 1887, Justus Palmer delivered the deed of his dead wife, which he held in escrow, to the grantee, Ethan B. Palmer, who, on the same day, deeded the premises to August Richter; and he, on the same day, deeded the premises to John Tenant. The city paid rent for May and June, 1887, to John Tenant, who accepted a surrender of the premises on July 1, 1887, from the city, and does not claim any damages for a breach of the covenant to surrender them in the same condition as they were when the city first took possession. There is no finding of facts as to what it would cost to restore the premises to the condition they were in when the city took possession thereof. Thus it would seem that the conclusion of law found by the court, that the executor of Christine L. Palmer was entitled to judgment for $500, to which defendant excepted, was not sustained by the facts found by the court. But whether or not this apparent oversight of counsel in preparing the findings is fatal to the validity of the judgment it will not be necessary for us to decide, and therefore we will not rest our decision thereupon. The breach of covenant to restore the condition of premises occurred on May 1, 1887, or on July 1, 1887, if the term was extended to that time by virtue of the proposition of the police captain made to Justus Palmer some time before the 1st of May, to which Justus Palmer testifies he assented, and of which the defendant certainly took advantage by remaining in possession thereof and paying rent therefor. On May 1, 1887, Justus Palmer was the owner of premises and the landlord of defendant. On July 1, 1887, John Tenant was such owner and landlord. Eight months before May 1, 1887, all interest of Christine L. Palmer in these premises, by her death and will, vested in Justus Palmer, and he became thereby the landlord of the city, and subrogated to all her rights under the covenants in this lease to the city. Her executor, under such circumstances, has no more claim to the damages caused by the alleged breach of this covenant to restore condition of premises on May 1, 1887, than she would have had if she was living, and had, eight months before the alleged breach, conveyed the premises absolutely to some other person. If the term was extended to July 1, 1887, by Justus Palmer, then no breach could have occurred till that time; and, in such event, John Tenant, the owner and landlord of the city, only, could assert a claim for damages for such breach of this covenant. Of course, if the breach had occurred before the death of Christine L. Palmer, and while she was the owner of the premises, and she had died thereafter, then her executor could recover therefor. Judgment in favor of the executor of Christine L. Palmer, for the foregoing reasons, cannot be upheld, and must therefore be reversed, and new trial ordered, with costs to appellant, to abide the event.

OSBORNE, J., concurs.

In re NICHOLLS.

(Surrogate's Court, Niagara County. November, 1889.)

1. LIMITATION OF ACTIONS-SPECIAL PROCEEDINGS-SURROGATES' COURTS. Under Code Civil Proc. N. Y. § 414, providing that the word "action" contained in chapter 4, which prescribes the limitations of actions, shall, when necessary, include a special proceeding, a proceeding for accounting by an administratrix in the surrogate's court is limited just as absolutely as remedies in other courts. 2. SAME-ACCOUNTING BY ADMINISTRATOR.

The duty of an administratrix to account is an "obligation or liability," within Code Civil Proc. N. Y. § 382, subd. 1, limiting actions on contract obligations or liabilities, express or implied, to six years after the cause of action accrued.