11 N.Y. 366 | NY | 1874
This action was brought by the plaintiffs as assignees of a lease made by the defendant of the premises known as 44 Vesey street, in the city of New York, for two years, containing a provision for a renewal, at the option of the lessees, for a further term of three years, by giving the lessor notice as therein provided, which notice had been given as therein provided, for the specific performance of an agreement made by the lessor to repair damages caused by fire. The lease provided that all other repairs were to be made by the lessees, and the case shows that this agreement of the lessor was interlined after the preparation, but before the execution of the lease. The case shows that the premises were nearly destroyed by fire while in the occupation of the plaintiffs, under the lease, so as substantially to require rebuilding,; but the trial judge found that they could be repaired, and the defendant must, after affirmance of the judgment by the General Term, be held in this court concluded by this finding. The judge further found that a reasonable time for doing the requisite repairs was four months.
The question is thus presented whether equity will enforce the specific performance of an agreement for making repairs of this character. The learned chief justice who gave the opinion of the General Term, after an elaborate and learned examination of the English authorities, arrived at the conclu
But I do not deem it necessary further, to pursue the investigation. As I understand the English cases, the power of enforcing the specific performance of contracts for repairs is not now exercised by courts of equity there, and there is no authority for its exercise by the courts of this State. This being so, a court of equity had no jurisdiction, as such, of the action.
But under the Code a plaintiff may unite in the same complaint several causes of action, both legal and equitable, arising out of the same transaction. (Code, § 167, sub. 1.) In the present case the rights of the plaintiffs, under the agreement, were stated in the complaint, and the failure of the defendant to perform the same, was also set out. The parties proceeded to trial upon the claim made by the plaintiffs for a specific performance of the contract. The trial judge found that the facts were not such as to authorize the granting of this relief, but as some evidence, showing the value of the
The judgment appealed from must he reversed, and a new trial ordered.
All concur.
Judgment reversed.