146 N.Y.S. 301 | N.Y. App. Div. | 1914
On the 7th of March, 1900, Charles F. Ayer, as landlord, rented to the defendant certain real premises known as No. 20 West Twenty-third street in the city of New York, with the appurtenances, for the term of ten years from the 1st day of May, 1902, at the yearly rent or sum of $20,000 for the first two years, and $20,500 for the following eight years. In said lease the defendant covenanted that “in addition to said rent they [he] will pay all taxes, assessments and Croton Water rates as may be assessed against said property so that the said rental above referred to shall yield a net rental to Charles F. Ayer.” In the year 1902, the first year of the term demised to the defendant, the taxes upon this property which had not been assessed at the time of the making of the lease, but which became payable presumably on the 1st of October, 1902, were paid by the tenant, so that the plaintiff received the net rental of $20,000 for that year. Each succeeding year the taxes were paid when payable down to the year 1911. So, for each year the plaintiff received the stipulated rental without deduction. In the year 1912, the lease expiring on or before the first of May in that year, the property was assessed for taxation at $302,000, which assessment was completed prior to the 1st of
By the lease the defendant did not undertake to pay the taxes which should be assessed against the property during the term demised, nor did he agree to pay any particular tax which should become a lien during the term or at any other
The general principle in the construction of instruments of this character is well settled — that an additional liability will not be imposed upon a tenant unless it is clearly within the provisions of the lease; but “ it has been held in many cases that the court will so construe a lease as to carry out the intention of the parties if possible.” (Buchanan v. Whitman, 151 N. Y. 253.) Where, .as in this case, the obligation of the tenant depends entirely upon a covenant that he would pay, not a particular tax or lien, but all taxes that may.be assessed against the property, so that a certain net rental should be received by the landlord, and where he has paid all taxes or charges assessed against the property which insures the landlord the rental reserved without any deduction or obligation, the tenant has complied with this covenant and an additional liability cannot be imposed.
I agree with the court below as to the other items to which the plaintiff claimed to be entitled, and as under this view of the lease the plaintiff has received the net rental which the parties contemplated he should receive, I do not think that the plaintiff was entitled to a recovery. I think, therefore, that
The judgment appealed from is, therefore, reversed, with costs to the appellant, and judgment directed for the defendant.
McLaughlin, Laughlin and Hotchkiss, JJ., concurred; Dowling, J., dissented.
Judgment reversed,' with costs, and judgment directed for defendant. Order to be settled on notice.