renders any

We are of

The decision of this court in Harris v. White
further discussion of the question unnecessary.
the opinion that the offering of premiums or prizes to be
awarded to the successful horses in a race is not in any such
sense a contract or undertaking in the nature of a bet or wager
as to constitute gambling within the spirit and intent of the
constitutional provision under consideration.

Nor can it be held that the relator was guilty of a crime under the provisions of section three hundred and fifty-two of the Penal Code. That section prohibits racing for a stake, bet or reward, except as allowed by special law. That chapter five hundred and seventy is a special law, within the meaning of that section, we have no doubt. It is manifest that such racing was not intended to be entirely prohibited by this statute, as it plainly indicates that the legislature contemplated the existence or passage of special laws pertaining to races for stakes or rewards.

We think the determination of the courts below was correct, and that the order of the Appellate Division should be affirmed. All concur.

Order affirmed.

WILLIAM A. HANKINSON, Respondent, v. AMY E. VANTINE,
Appellant, Impleaded with WILLIAM II. RIKER et al.,
Respondents, et al.

1. MECHANIC'S LIEN-ALTERATION OF BUILDING BY OCCUPANT — CONSENT OF OWNER. The requirements of the Mechanic's Lien Law, as to the consent of the owner of a building to the performance of labor or furnishing materials by a lienor in altering the building on the employment of the occupant, are not met by a mere general agreement, which is unknown to the lienor, that the occupant may make alterations at his own expense; but the statute requires either that the owner shall expressly consent to the particular alteration made, or that, with a knowledge of the particular object for which they are employed, he acquiesces in the means adopted for that purpose.

2. ALTERATION OF LEASED BUILDING BY LESSEE - CONSENT OF OWNER ESSENTIAL TO LIEN OF MATERIALMAN. Where a lease of a building provides that the lessee shall not make any alterations without the consent of

the owner, under penalty of forfeiture, a mere general consent of the owner that the lessee in occupation may make alterations at his own expense does not constitute a consent by the owner that a third party shall furnish labor or materials for the alterations, so as to make such labor and materials the basis of a mechanic's lien upon the building, especially in the absence of any notice or knowledge on the part of the owner from which such consent can be implied.

3. LIEN BY ESTOPPEL-INSUFFICIENCY OF FACTS. A lien for labor and materials furnished in altering a building for a lessee in occupation without any sufficient consent on the part of the owner to support a lien under the statute, cannot be sustained in equity upon the ground that a consent to make alterations at the lessee's own expense, given by the owner to the lessee, provided that the owner should have the benefit of alterations at the expiration of the lease, where the original lease contained the same provision, and the lienor knew that his employer was not the owner of the building, and is not shown to have been influenced by, or to have known of, the consent given by the owner to the lessee, and it does not appear that the alterations were made with the knowledge of the owner or that they will be an actual benefit to the owner.

4. PAROL VARIATION OF WRITTEN AGREEMENT. The general rule which excludes evidence of parol negotiations and undertakings, when offered to contradict or substantially vary the legal import of a written agreement, applies only in controversies between the parties to the instrument.

Hankinson v. Riker, 10 Misc. Rep. 185, reversed.

(Argued January 26, 1897; decided March 2, 1897.)

APPEAL from a judgment of the General Term of the Court of Common Pleas for the city and county of New York, entered December 1, 1894, which affirmed a judgment of the Special Term in favor of plaintiff entered upon the report of a

referee.

The nature of the action and the facts, so far as material, are stated in the opinion.

John L. Hill for appellant. The spirit, as well as the letter, of the Mechanic's Lien Law is that the owner must, in some form, consent to alterations or repairs upon property before any person, be he laborer, contractor, materialman or what not, can acquire any right respecting it. (Nellis v. Bellinger, 6 Hun, 560; Husted v. Mathes, 77 N. Y. 388; Burkitt v. Harper, 79 N. Y. 273; Otis v. Dodd, 90 N. Y. 336;

Schmalz v. Mead, 125 N. Y. 190; Miller v. Mead, 127 N. Y. 544; Spruck v. McRoberts, 139 N. Y. 193.) The most that can be said of the paper signed by Miss Vantine is that she knew that Riker contemplated making alterations without specification of details or substance. But that is not enough to charge the landlord. (Havens v. W. S., E. L. & P. Co., 49 N. Y. S. R. 771; Regan v. Borst, 11 Misc. Rep. 96.) The proof of Riker's statement, in the negotiations which led to these writings, of the changes which he proposed to make, was entitled to probative force as explaining the object and limitations of the consent. (Chester v. Bank of Kingston, 16 N. Y. 343; Agawam Bank v. Strever, 18 N. Y. 509; Whart. on Evi. § 940; Field v. Munson, 47 N. Y. 221; Blossom v. Griffin, 13 N. Y. 569; Messmore v. N. Y. S. & L. Co., 40 N. Y. 422; Truscott v. King, 2 Seld. 161; Clarke v. Meigs, 10 Bosw. 327; G. S. Co. v. Whitin, 69 N. Y. 328.) The Riker Company and Comyns' estate were each bound to pay for these improvements by their covenant with Miss Vantine. (Dusenbury v. Fisher, 15 J. & S. 482; Derham v. Lee, 15 J. & S. 174; 87 N. Y. 599.) The referee was bound to provide for a separate sale of the leasehold in the first instance, and the exhaustion of all personal remedies against individuals liable to plaintiff before resorting to her reversion. That reversion, at the very utmost, stood in the relation of a surety or guaranty fund. It was separate from the leasehold which had been alienated. The same rule ought to have been applied as in sales in inverse order of alienation. (Bispham's Principles of Equity, § 360.)

George W. Wickersham for William A. Hankinson, respondent. The estate of Miss Vantine, in the premises 355 Sixth avenue, is subject to a lien for the work done and materials furnished in making alterations and repairs thereon for her lessee, W. H. Riker, which she had consented he should have done. (L. 1885, ch. 342; L. 1888, ch. 316, § 25; Pell v. Baur, 133 N. Y. 382; Schmalz v. Mead, 125 N. Y. 188; Hackett v. Badeau, 63 N. Y. 476; Iusted v. Mathes, 77 N.

Y. 388; Nellis v. Bellinger, 6 Hun, 560; Otis v. Dodd, 90 N. Y. 336; Miller v. Mead, 127 N. Y. 544; Havens v. W. S., E. L. & P. Co., 20 N. Y. Supp. 764; 143 N. Y. 632; Cowen v. Paddock, 17 N. Y. Supp. 387; 137 N. Y. 188; Ross v. Simon, 16 Daly, 160.) The defendant, Amy E. Vantine, expressly consented to the performance of the work upon the building 355 Sixth avenue, owned by her, for the value of which the lien of the plaintiff upon her interest therein has been established. (Havens v. W. S., E. L. & P. Co., 20 N. Y. Supp. 764; Cowen v. Paddock, 137 N. Y. 188; Nellis v. Bellinger, 6 Hun, 560; Husted v. Mathes, 77 N. Y. 388; Burkitt v. Harper, 79 N. Y. 273.) The work having been performed upon and the materials furnished to both buildings alike as one job, and in turning them into one building, the notice of lien was properly filed against both properties jointly; but the referee correctly ascertained the price and value of the labor and material performed upon and furnished to each of the said respective houses, and reported that the plaintiff was entitled to a lien upon each building for the amount so found to have gone into it. (L. 1885, ch. 342; L. 1887, ch. 420, § 20; 15 Am. & Eng. Ency. of Law, 73, 74, 86 ; Kneeland on Mechanics' Liens, 116; 2 Jones on Liens, § 1319; Paine v. Downey, 4 E. D. Smith, 734; Rogers v. McKenzie, 4 Ves. 472; Rourke's Case, 5 Coke, 100; Story's Eq. Juris. 484; McCauley v. Mildrum, 1 Daly, 346; Hall v. Sheehan, 69 N. Y. 618; Philips v. Gilbert, 101 U. S. 721; Mandeville v. Reed, 13 Abb. Pr. 173; Livingston v. Miller, 16 Abb. Pr. 371; Hayden v. Logan, 9 Mo. App. 492; Moore v. Thompson, 105 Mass. 305.) Taking promissory notes from W. H. Riker for the balance due the plaintiff, which fell due after the expiration of the time within which the lien was required to be filed, but before the time to bring suit to enforce it expired, did not affect the right to file such lien, but merely postponed the time of enforcing it until after the maturity of the notes. (G. Ins. Co. v. O. I. Co., 76 Hun, 194; Carroll v. Sweet, 128 N. Y. 21; Jagger I. Co. v. Walker, 76 N. Y. 522; K. M. Co. v.

Opinion of the Court, per MARTIN, J.

[Vol. 152.

Eisenberg, 7 Misc. Rep. 80; Lutz v. Ely, 3 E. D. Smith, 621; Althouse v. Warren, 2 E. D. Smith, 657; Phillips on Mechanics' Liens, §§ 282, 311; Miller v. Moore, 1 E. D. Smith, 739; Mott v. Lansing, 57 N. Y. 112; Crossman v. U. R. Co., 127 N. Y. 34; Jones v. Moores, 67 Hun, 109.) There are no material errors in the rulings of the referee. (Dixon v. La Farge, 1 E. D. Smith, 722; Gay v. Brown, 1 E. D. Smith, 725; Muldoon v. Pitt, 54 N. Y. 269; Knapp v. Brown, 45 N. Y. 207; McMaster v. Ins. Co. of N. A., 55 N. Y. 234; Juilliard v. Chaffee, 92 N. Y. 539; Coleman v. F. Nat. Bank, 53 N. Y. 388; G. S. Co. v. Whitin, 69 N. Y. 328; Eagleson v. Clark, 2 E. D. Smith, 644; Callanan v. Gilman, 107 N. Y. 360; Morris v. Wells, 7 N. Y. Supp. 61; 27 Abb. [N. C.] 202, notes.)

James McKeen for Wm. B. Riker & Son, respondent. The purchasers of the leasehold took the property as they found it. They had no knowledge or notice that Riker had come under any obligations to the mechanics or to Miss Vantine which he had not means to discharge. As such purchasers of a lease having more than three years to run, they were precisely within the protection of the Recording Acts. (1 R. S. 756, § 1; 762, $$ 36, 37, 38; L. 1885, ch. 342, § 5; McCorkle v. Herrman, 117 N. Y. 303.) It is urged that the purchasers' title, acquired February 12, 1892, to the leaseholds, was defective by reason of Miss Vantine not consenting to the assignment by Riker to them. This is untenable. (Brummell v. McPherson, 14 Ves. 173; Murray v. Harway, 56 N. Y. 337; Smith v. Rector, etc., 107 N. Y. 610.) The plain and obvious meaning of the corporation's agreement with Miss Vantine is that it will observe and perform the other terms and conditions as well as the payment of rent for the entire remainder of the term. (Townsend v. Scholey, 42 N. Y. 18; Gerard on Titles, 182, 183.)

MARTIN, J. This action was to foreclose a mechanic's lien filed by the plaintiff against two lots, known as numbers 353