49 N.Y.S. 620 | N.Y. Sup. Ct. | 1898
The lease demised the premises No-. 28 Elm street, New York city, for ten years and six months from November 1, 1890, at $4,000 a year, .in monthly payments. On June 14, 1894, a fire occurred, and the building, though not destroyed, was damaged to an extent that rendered it untenantable.' The dispute arises under the special covenant of the lease which provides “ that, in case the building or buildings erected on these premises hereby leased -shall be partially destroyed by fire, the same shall be repaired as speedily as possible at the expense of the party of the first part ” (landlord); “ that, in case the damages shall be ,so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair, but, in case of the total destruction of the premises by fire or otherwise, the rent shall be paid up to the ¡time of such destruction, and then and from thenceforth the lease shall cease and come to an end,” etc. The true construction of the covenant is that the landlord, in case of partial destruction, whether or not the building was made untenantable, was to begin repairs as soon las possible and complete them as speedily as possible. The covenant contains but two clauses — one in regard to total destruction, which was to terminate the lease; the other in regard to partial injuries, in which case the premises were-to be restored by the landlord to their former condition. In this respect the case differs essentially from Witty v. Matthews, 52 N. Y. 512, in which the covenant contained three independent clauses, the one relating to speedy repairs applying only to injuries not rendering the premises untenantable; whereas in this instance the covenant applies whether the premises were rendered untenantable or not. The obligation to pay rent ceased under the special covenant here when the building became untenantable, subject to revival only in case the repairs were made by the landlord “ as speedily as possible-; ” for this was a condition precedent to such revival. The rule is that a condition precedent (not waived by the party in whose favor it is made) must be literally observed by the party (who is to perform the promise, and if he fail to perform, the other party is discharged. 3 Am. & Eng. Enc. of L. 911, 914; Higgins v. Delaware, L. & W. R. R. Co., 60 N. Y. 553; Koerner v. Henn, 8 App. Div. 602. Any other construction would compel the tenant to resume possession at an un- , known and indeterminable period, measured only hy the pleasure of the landlord; which was evidently not the intention of the con
Judgment for defendant.