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BROWN V. BROADWAY & SEVENTY-SECOND ST. REALTY CO. (Supreme Court, Appellate Division, First Department. April 23, 1909.) 1. LANDLORD TENANT (8 152*)—LEASES-CONSTRUCTION="ALTERATION

AND CHANGE."

A lease provided that the lessee should make certain alterations in the building, consisting of an addition thereto, the putting in of store fronts, and other changes for the purpose of converting the upper part into bachelor apartments, and that all other alterations and changes should be made by the lessee subject to the landlord's approval. Held, that a sign constructed on the roof of the building was not an "alteration and change" in the building within either of the provisions of the lease, as it did not change the nature or character of the building, but was merely a use to which the outside of the building could be applied.

[Ed. Note.-For other cases, see Landlord and Tenant, Dec. Dig. § 152.*] 2. LANDLORD AND TENANT ($ 134*)—LEASES-RIGHT OF TENANT.

In the absence of an express covenant in a lease restricting the tenant in his use of the property, he may use it in any way consistent with the purpose for which it was erected.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $$

482-486; Dec. Dig. $ 134.*] 3. LANDLORD AND TENANT (8 55*)—USE OF PREMISES-WASTE.

The use of the roof of a leased building by the tenant for advertising purposes would not be a waste as between the landlord and tenant.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. $8 136-150; Dec. Dig. $ 55.*]

Submission of controversy between Davis S. Brown and the Broadway & Seventy-Second Street Realty Company upon an agreed statement of facts under Code Civ. Proc. § 1279. Judgment ordered for defendant.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

Benjamin G. Paskus, for plaintiff.
Paul M. Herzog, for defendant.

INGRAHAM, J. It appeared from the statement herein submitted that the plaintiff is the owner of certain real property located on the southwest corner of Seventy-Second street and Amsterdam avenue; that on November 10, 1900, he leased the premises to a corporation known as the Import Cigar Company for a term of 20 years and 11 months from the 1st of June, 1907; that subsequently the lessee assigned this lease to one Solomon, who on June 29, 1907, assigned the lease to the defendant. This lease requires the lessee to pay the rent, which was from $9,000 to $12,000 a year, and all taxes and assessments upon the property, and the tenant covenanted to make all repairs on the property during the term. It was also provided that the lessee, after the signing of the lease, was to make certain alterations in the building at its own expense. All alterations or changes, except those specified in the lease, were to be made at the expense of the defendants and subject to the approval of the plaintiffs; and all alterations and changes were to be made subject to the rules and regulations

of the municipal authorities of the city of New York, the tenant to be responsible for any and all damages to the building caused by making the alterations or changes. After the defendant became the owner of the lease, it made the alterations and changes therein contemplated, and in addition erected upon the roof of the building a sign, which was used for advertising purposes. This sign extends across the building on Seventy-Second street, distant 30 feet, and on the Amsterdam avenue side of the building distant 60 feet, and is 10 feet in height. These, with other signs erected upon other parts of the building, were constructed of sheet iron, wood, and metal, and are firmly bolted and clamped to the roof and various portions of the outer wall and cornice of said building with steel rods and bolts; but they can be removed without injury to the building. These signs were erected under a permit of the proper municipal authorities. The plaintiff claims that the defendant should be enjoined from maintaining these signs, and the defendant claims that it is entitled to use the premises in any way not expressly prohibited by the lease.

There is nothing in this lease that applies to the use of signs upon the leasehold premises. It is quite clear that the erection of this sign upon the building is not an "alteration and change" of the building allowed by the provisions of the lease; and neither can it be said to be an alteration or change of the building to which the plaintiff must assent. . The nature of the inprovements which were to be made by the tenant consisted of an addition to the building upon a portion of the lot not covered by the existing building, the putting in of store fronts, and minor changes in the upper part of the building; and in the submission it is stated that these changes in the upper part of the building were for the purpose of converting the same into bachelor apartments. These all related to structural changes in the building itself, and, when an alteration or change in a building is spoken of, the usual meaning of the phrase is such alteration of the structure itself, as distinct from mere additions to the outside of the building, or mere additions to the building itself, which have no relation to its structure and make no change in its character. Changing an apartment or residential building to a store building, where the addition would be the taking out of the front and putting in a store front, would be in its nature a structural change, which would essentially change the character of the structure upon the property; but merely putting upon the roof a sign, whether for the benefit of the tenant in the building or for others, would not be a change in the nature or character of the building itself, but would be merely a use to which the outside of the building could be applied. The language used in the lease shows what the parties had in contemplation when they used the words "alteration or change in the building." So long as any use to which the tenant put the building did not in any way change or alter it, it does not seem that this clause of the lease applies. It is quite clear that the lessee of this property has the right to use the property in any way consistent with the purpose for which it was erected and not restricted by the lease. If the landlord wishes to restrict the tenant in his use of the property, he must depend upon an express covenant in the lease preventing a use to which he objects.

The plaintiff seems to base his claim for an injunction upon the fact that there is nothing in the lease that authorizes such a change; but, to entitle him to judgment, he must go a step beyond, and show that in the lease there is a covenant which prevents or restricts the defendants in the use of this roof or building. In Andrews v. Day Button Co., 132 N. Y. 384, 30 N. E. 831, the effect of the covenant that he would not make any alterations in the premises without the consent of the landlord was held to be a mere affirmation of the common-law rule that a tenant could not commit waste, and it would be quite clear that, in the absence of any covenant, the use of the roof for advertising purposes would not be a waste as between the landlord and tenant. The danger of a liability of the defendant for a failure to safely maintain this structure so that it would not injure any one in the street is fanciful. There is no fact set forth in the submission from which the conclusion could be drawn that the signs were so constructed that there was any possible danger of their falling or injuring any one in the street; but, as there is no covenant in this lease that restricts the tenants as to the use to which he can put the premises, it follows that the plaintiff is not entitled to an injunction restricting the use of the premises, and the defendant is entitled to judgment.

Judgment ordered for defendant. All concur.

KING V. MULDOON.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) ANIMALS (8 74*)—BITE BY Dog-ACTIONS–Evidence.

In an action for injuries from the bite of a dog, evidence held to support a judgment for plaintiff.

[Ed. Note.-For other cases, see Animals, Cent. Dig. § 268; Dec. Dig. $ 74.*) Appeal from Trial Term, Westchester County.

Action by William W. R. King, by Mary L. Bucklin, his guardian ad litem, against William Muldoon. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ

Henry T. Dykman, for appellant.
John M. Digney, for respondent.

WOODWARD, J. The plaintiff, an infant, was bitten by a dog, alleged to belong to the defendant, on the 1st day of January, 1904. There is no question raised as to the extent of the injuries, or to the fact that the plaintiff was bitten. The questions litigated were whether the defendant owned the dog which did the biting, and whether the defendant had notice of the vicious tendencies of the dog; it being urged on the part of the defendant that the evidence did not warrant the submission of these questions to the jury.

It appears from the evidence, without dispute, that the plaintiff was

riding upon a hand sled, attached to the rear end of a vehicle being driven by his mother, on the 1st day of January, 1904. He was lying on the sled on his stomach, and while in that position, and while passing the defendant's premises, upon the highway, a number of dogs ran out, and one of them bit him. At this point there is a conflict in the evidence. One witness testifies that there were seven dogs, some of which came from a neighboring place, and there was evidence tending to show vicious characteristics upon the part of these neighboring dogs, which were described as being St. Bernards, while the dogs which belonged to the defendant were collies. The plaintiff's witnesses insist that there were but four dogs involved in the matter, and that none of these were St. Bernards, while the plaintiff himself testifies that he was bitten by a particular member of the group of four dogs, known as the "old dog." The evidence also showed that one witness at least had made complaint of this particular dog to the housekeeper of the defendant, who testified that she was in general charge of the place in the absence of the defendant, and that this complaint was made at a time when the master was not at home. The learned court charged the jury correctly upon the law of the case, no objection being made to the same, and we are of the opinion that there was no reversible error in the case. The evidence, while conflicting, was sufficient to support the verdict, and, there being no exceptions of merit to the rulings of the court, the verdict of the jury will not be disturbed.

The judgment and order appealed from should be affirmed, with costs. All concur.

BANK OF LONG ISLAND V. GREGORY et al.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) 1. Courts ($ 190*)— MUNICIPAL COURTS-ORDERS APPEALABLE.

Under Municipal Court Act (Laws 1902, pp. 1563, 1578, c. 580) 88 257, 310, defining appealable orders, an appeal from an order directing substituted service of summons is unauthorized.

(Ed. Note.-For other cases, see Courts, Dec. Dig. $ 190 ;* Appeal and

Error, Cent. Dig. § 103.) 2. COURTS ($ 190*)—MUNICIPAL COURTS-APPEAL-QUESTIONS REVIEW ABLE.

An appeal from a judgment of the Municipal Court rendered on substituted service of sunimons is sufficient to present for review the validity of the order for substituted service.

(Ed. Note.—For other cases, see Courts, Dec. Dig. $ 190 ;* Appeal and Error, Cent. Dig. § 103.) 3. COURTS (8 190*)— MUNICIPAL COURTS-APPEAL-SUBSTITUTED SERVICE OF PROCESS-GROUNDS-REVIEW.

Under Municipal Court Act (Laws 1902, p. 1500, c. 580) $ 32, authorizing substituted service of summons on a resident defendant, on proof by affidavit that diligent effort has been made to serve the summons, that the place of the sojourn of defendant cannot be found, or that be avoids service, so that personal service cannot be made, the facts necessary to

warrant an order for substituted service must be established by affidavit, 'For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and the determination of the judge that the evidence presented by afidavits is satisfactory is controlling on appeal.

(Ed. Note.-For other cases, see Courts, Dec. Dig. $ 190;* Appeal and Error, Cent. Dig. $ 103.] Appeal from Municipal Court, Borough of Queens, Third District.

Action by the Bank of Long Island against George W. Gregory and another. From a judgment for plaintiff, and from an order directing substituted service of summons, defendants appeal. Affirmed.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

Samuel Schlesinger, for appellants.
C. H. Street (Leander B. Faber, on the brief), for respondent.

BURR, J. This action was brought in the Municipal Court to recover the sum of $275 upon a promissory note made by the defendant Mae T. Gregory to the order of her codefendant, George W. Gregory, which was indorsed by him and transferred to the plaintiff for value and before maturity. Upon presentation and default in payment the note was duly protested. The summons was issued on the 17th day of December, 1908, returnable on the 28th day of the same month. Plaintiff was unable to procure service to be made on the defendants, and on the 26th day of December, 1908, an alias summons was issued, returnable on the 6th day of January, 1909. On the 30th day of December, 1908, an order was obtained for substituted service, and on the same day said summons was served in accordance with the terms of such order. On the return day of the summons, the defendants did not appear, and judgment was entered by default. On the 9th day of January, 1909, the defendants appealed from the said judgment, and also from the order directing substituted service of such summons.

A separate appeal from such an order is not authorized by any provision of the Municipal Court act. Laws 1902, pp. 1563, 1578, c. 580, $S 257, 310; Great Northern Moulding Co. v. Bonewur, 128 App. Div. 101, 112 N. Y. Supp. 466; Nolte v. Seymour, 127 App. Div. 178, 111 N. Y. Supp. 311; Beebe v. Nassau Show Case Co., 41 App. Div. 456, 58 N. Y. Supp. 769; Freidberger v. Stulpnagel, 59 Misc. Rep. 498, 112 N. Y. Supp. 89. An appeal from the judgment, however, is sufficient to present for review the validity of such order. Freidberger v. Stulpnagel, supra. The Municipal Court act contains the following provisions:

“An order for the service of a summons upon a defendant residing with. in the city may be made by the court in the district in which an action is brought after an alias summons has been duly issued, upon satisfactory proof by the affidavit of a person not a party to the action, and the return of a marshal, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be found, or if he is within the city that he avoids service so that personal service could not be made.” Laws 1902, p. 1500, c. 580, $ 32.

The jurisdictional facts necessary to warrant the granting of such an order are residence of the defendant in the city, the issuing

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