117 A.D. 206 | N.Y. App. Div. | 1907
Patterson, P.s J., McLaughlin, Houghton and Scott, JJ., concurred; Laughlin, J., dissented.
The judgment is affirmed on the opinion of the referee. All concur, except Laughlin, J., who dissents upon the grounds of error in allowing recovery for items not embraced in bill of particulars and for incompetent and insufficient proof of reasonable cost of making required repairs.
The following is the opinion of Hamilton Odell, Esq., referee. Odell, Referee:
It is admitted by the defendant'that he lias failed to pay" to the plaintiffs the sum of $1,000, part of the rent which became due by the terms of the léase on the 1st day of April, 1902.
■ The defendant covenanted that “ he will make all repairs inside and outside of the said building which may be needful to the demised premises during his term, including repairs to all plumbing work and pipes, and will keep the demised premises' in good order and repair during his term, at liis own expense, and * * , * will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit,,damages by the elements excepted.” The plaintiffs allege that the defendant failed to keep'these covenants;' that he did not maintain the premises in good condition, but allowed them “ to fall into and remain in a condition of dilapidation and disrepair, and quitted and. vacated the same while in' such condition,,” by reason whereof the plaintiffs have sustained substantial damage.
Covenants of this character have been frequently considered by the courts, and' are no longer of doubtful meaning. In Green v. Eden (2 T. & C. 582) the covenant was “ to keep the whole of said house and premises in good repair and condition during the said demised term.” It was held that the tenant was bound to repair defects existing at the time he took possession. In Lockrow v. Horgan (58 N. Y. 635) the covenant ivas “ to make all necessary repairs and to keep the same in tenantable order at his own cost.” The premises became untenantable by reason of the settling of a
The building in question in this case was ah old building, erected many years ago, but' there is no proof that when the defendant took possession or at any later time its foundations or walls were- not in good condition or that it was otherwise 'structurally weak. In 1887 it was leased for a term of ten years to the Hew York Steam Company, "and that company" expended' in alterations .and repairs upwards of-$33,000. When tlielease to the defendant .was .made it was clearly understood by both parties that to put the building in proper repair would require a considerable outlay,,and it .was stipulated in the lease that towards these repairs the lessors should con-tribute the sum of $1,000, which they did.- - The duty of making all repairs in excess of this sum, and of "keeping and leaving tiré, building in good condition, was assumed by the defendant,by the covenants which have been referred to. '■ - • " .......
I must ñnd as a matter of fact that the defendant did not leave
They claim $1,000 for repairing the elevator. The testimony of the architect is: “ In the estimate received for repairing the elevator and car the amount was approximately $1,000.” The cost of repairing the car was $200, and for that a separate claim is made. The elevator was an old one and operated by hydraulic or steam power, the architect is not certain which. It was not repaired, but a new and modern elevator operated by electricity was put in at an expense of $2,000. It is not claimed that this was a necessity or that the old elevator was incapable of repair. Mr. Teeming, the architect, says: “ It was deemed unwise and unsafe to use the then present elevator, and it was deemed' unbusinesslike to expend the amount of money which would be necessary for repairs to the then present elevator, when, for a certain greater sum, a new elevator could be'installed.” So that it seems that the plaintiffs' did not choose to hold the defendant to the terms óf his covenant. They elected not to repair at his expense, but to put in new machinery of an improved and essentially different character. My opinion is that they have no right to charge the defendant with the cost of that improvement to the extent of what repairs to the old machinery would have cost had they been made.
The same objection lies to the item of $177.10 for “elevator pump.” This pump was a Worthington steam pump, and was used to raise water to the tank on the roof. Mr. Teeming testifies as follows: It “ was in very poor condition indeed. 1 cannot say anything positively now as to its exact condition, except that after consultation, it was decided that it was absolutely necessary to remove it and to put in a new pump. * * * (It) was deemed.unfit for use; it was deemed impossible to repair it, and a new elevator pump was put in.” When asked on cross-examination what was the matter with it he said it leaked. It “needed repacking, and was badly worn.” There is testimony, and it is not contradicted,
The plaintiffs claim to recover the sum of $441 as the cost, of-“painting walls, (fee., in building,” and the further sum of $600 for “ painting.” Concerning the first- item,, the architect says : That “ was the total expense for .putting the woodwork in the halls and the woodwork of the rooms in proper condition. * * * (It) covered the painting of the old woodwork in the halls and in certain.offices in the building—hot all of them — and -it covered the-painting of thé walls and ceilings, the window frames, the; roof, the new tank house, and such work in the building as required .painting fo put it in a good state of repairs.. * * * Painting the sásh and fíame and trim of the building, varnishing the old worn-' out woodwork, and all the general work required to put the old Work,in good condition, $375,” He further testified' that the general contractor for the mason and carpenter work, plastering and “ general -overhauling ” of the building “ did some work,” the cost of which, included in the original estimate, was $600, and that the said contract covered, various items of repairs, including,- an item of $600 “for painting.” In my judgment, the testimony, read together, does not warrant the allowance of this $600 item..
The remainder of tire plaintiffs’ claim for damages (except the item of $25 for a metal ceiling), amounting to $4,180.78, should, I think,fbe allowed, provided the plaintiffs have any right of recovery on such claim, which the. defendant denies.
The proofs show that in April, 1901, á full- year before the expiration of 'the defendant’s term, the plaintiffs leased the said premises to the Waterman Company for five years from May 1,1902, and that, the lease contained a covenant similar to that contained in defendant’s lease, that' is to say, the Waterman Company engaged to, “ at its own expense, make all repairs inside and outside of the said building which may become needful-during the said -term, including repairs, to all plumbing work and pipes, and keep the demised premises in good order and repair during the said term ; ” and'they'show also that .the. repairs to the building which were made necessary by the defendant’s default were made by and at the
The defendant has interposed a counterclaim, alleging that, by false and fraudulent statements made by authorized agents of the plaintiffs with knowledge of their falsity and with intent to deceive; and on which he relied, he was induced to enter into the lease- of the premises and damaged to the extent of $24,000. The testimony does not support the claim.
The plaintiffs are entitled to judgment for $5,180.78, with interest on $1,000 from April 1, 1902.
