184 A.D. 187 | N.Y. App. Div. | 1918
This action was brought to recover the damages claimed to have been sustained by plaintiff by reason of certain alleged breaches by defendant of a lease under seal. Defendant set up various counterclaims for matters arising out of the same lease. Plaintiff has recovered judgment upon its third cause of action in an amount for which defendant had already offered judgment. Various causes of action and counterclaims were withdrawn upon the trial, and others were dismissed. Plaintiff upon this appeal withdrew its contention that the ninth cause of action had been improperly dismissed, thus limiting its appeal to the dismissal of the eighth and fourteenth causes of action. Defendant seeks a reversal of so much of the judgment as dismisses its fourth and fifth counterclaims. The lease in question is dated January 31, 1912, and is under seal. Thereby defendant, as landlord, leased to plaintiff, as tenant, the fifth, sixth, seventh and eighth floors of the building Nos. 418 to 426 jWest Twenty-fifth street, borough of Manhattan, city of New York, together with certain space on the fourth floor and a pent house to be erected on the roof, for the period of twenty years and ten months from May 1, 1912. ■ The building was then in course of construction and the landlord agreed to have it ready for occupancy by March 15, 1912, and between that date and the commencement of the lease the landlord was to supply elevator service, heat and light to enable the tenant to prepare its part of the building for its purposes and to remove its plant thereto. The premises thus leased to the tenant were “ to be used by the Tenant, or its lessees, in its business of printing, lithographing, engraving, electrotyping, bookbinding, publishing, and all the various branches thereof, * * * or any other business not more hazardous than the business next hereinbefore specified and referred to, as may be desired by the Tenant, and for no purpose more hazardous; the amount of rent having been fixed in view of the purposes for which the premises are to be hired.” The lease is a most voluminous document, evidently drawn with great care and intended to provide for every contingency that might arise affecting the rights or obligations of the respective parties. Such parts of it need
Considering first the plaintiff’s appeal, we are called upon to decide the sufficiency of the eighth cause of action set forth in the complaint. This alleges the making of the lease in question and the incorporation of the parties thereto. It then is averred: “Forty-seventh: That, in and by the eighth subdivision of the ‘ Twelfth ’ paragraph of said indenture of lease, Exhibit ‘ A,’ defendant covenanted and agreed with plaintiff that it would comply with all reasonable orders, rules and regulations of the New York Fire Insurance Exchange and of the New York Board of Fire Underwriters, necessary to obtain and retain the most favorable rate of insurance premium on property of the plaintiff in the said premises demised by said identure of lease, Exhibit ‘A’; and that," should the insurance rate on the property of plaintiff be increased beyond such rate on account of any act of defendant, or of any neglect of defendant to comply with the rules and regulations provided for, then defendant should be responsible to the plaintiff for any such excess insurance premiums which plaintiff might have to pay upon its property in the said demised premises.
“Forty-eighth: That defendant failed and neglected to comply with the reasonable orders, rules and regulations of the New York Fire Insurance Exchange and of the New York Board of Fire Underwriters; and that, by reason of such failure and neglect on the part of defendant, plaintiff was compelled to pay, and did pay, as insurance premiums upon its property in the said demised premises, and upon its use and occupancy of the same a sum greater by Seven hundred seven and 33/100 Dollars ($707.33), than the sum it would have had to pay had defendant complied with its said covenant and agreement. That the average dates of payment of the above sum were as follows: of Four hundred forty and 90/100 Dollars ($440.90) thereof, September 1, 1912; Two hundred fifty-eight and 63/100 Dollars ($258.63) thereof, January 1, 1913; and Seven and 80/100 Dollars ($7.80) thereof, March 15, 1913.”
This cause of action was dismissed by the learned trial court upon the ground that the 48th paragraph, just quoted,
The fourteenth cause of action is based on the “ fifteenth ” paragraph of the lease, which reads as follows:
“ Fifteenth. The Tenant shall have the privilege of installing at its own expense a high pressure electric power and light generating plant, if it deems it for its interest to do so. The Tenant, however, shall avail itself of this option to install a high pressure power plant within one year from the date hereof, and shall give timely notice accordingly to the Landlord of its intention so to do. Should the Tenant not so notify the Landlord within one year from the date hereof, the option as to the installation of such power plant shall become null and void. The saving in the cost of the equipment for the heating plant at present planned because of there being no requirement for it, is to be allowed and paid to the Tenant by the Landlord. In case the Tenant established
After substantially setting forth said paragraph, it is alleged that within the year plaintiff notified defendant that it elected to avail itself of the option thereby given to install its own plant and demanded that defendant enter into the agreements and contracts therein specified but that defendant notified plaintiff it would not enter into such contracts and repudiated the same, to that extent. It is then set forth that plaintiff was ready, willing and able to install the plant provided for and to furnish to defendant the power for heating, lighting, running the elevators, and such general care of the building as defendant was obligated to assume, but that by defendant’s repudiation of its agreement plaintiff was prevented from so doing; further, upon information and belief, “ that, if defendant had kept and performed its said covenants and agreements with plaintiff, plaintiff would have furnished such power to defendant for the period of twenty (20) years, and would have received therefor each year a sum larger by Four thousand Dollars ($4,000) than the expense to plaintiff of furnishing such power to defendant during said year; making an aggregate profit to plaintiff of Eighty thousand Dollars ($80,000). That, on or about August 28, 1913, plaintiff demanded of defendant payment of the present
Considering next the defendant’s appeal, it is urged that the dismissal of its fourth counterclaim was erroneous. This was based upon a portion of the 3d paragraph of the lease, reading as follows:
“ And as part of the consideration for this lease, the Tenant
“ The provisions of this subdivision numbered ‘ Third ’ shall pertain to and be binding upon the Tenant only in so far as and to such extent only as such rules, orders, ordinances or regulations, or any of them, shall bear upon or have relation to or be applied because of the character or method of the use and occupation of said leased premises, or any part thereof, by the Tenant or its lessees, and were not made, issued or enforced by reason of any acts or omissions of the Landlord or its agents. Any addition, additional staircases, fire escapes or changes to the exterior or interior of the structural parts of the building, which the City or any other authorities may require, shall be supplied, installed, made and provided for by the Landlord, at its own cost and expense.”
The counterclaim in question sets forth that on or about December 1, 1913, the industrial board of the city of New York demanded of the landlord and tenant that they equip all of the building Nos. 418 to 426 West Twenty-fifth street with a fire alarm signal system, and that thereafter defendant duly demanded of plaintiff that it equip or pay the expense of equipping the floors and portions of the building occupied by it as tenant with such fire alarm signal system and pay one-half of the necessary rental therefor, but that plaintiff refused so to do, whereby defendant was required to so equip said building and it seeks to recover one-half of the cost thereof from plaintiff. This counterclaim upon the trial was amended by setting forth that the order in question was occasioned “ wholly because of the character and method of the use
It is alleged that plaintiff has broken the said provision by making structural alterations in the premises, removing and altering portions of the floors, making holes therein, constructing a dumb-waiter shaft, putting in pipes and otherwise interfering with the condition, strength and structural capacity of the floors, all without defendant’s permission or consent, in writing or otherwise. It is then averred that defendant has duly notified plaintiff of said breach, and has declared a forfeiture of the lease because of the said acts and has demanded that defendant be permitted to re-enter and repossess all of the portions of the building leased to plaintiff, which has been refused by plaintiff. It is then set forth that plaintiff is in possession of specified portions of the building in question pursuant to the terms of the lease between the parties which is annexed in full to the answer. But that lease contains also the following paragraph:
“ Twentieth. In case of the intentional and persistent violation of any of the covenants of this lease by either the Landlord or the Tenant, the aggrieved party may elect to declare this Lease expired as if the time fixed for its expiration had actually arrived, anything to the contrary herein contained, notwithstanding; Provided, however, that in case there is a dispute between the parties as to such violation, the same shall first be determined by arbitration in the manner provided elsewhere herein for the determination of any and all disputes that may arise; and in case of an ascertained violation by the Tenant, which shall not thereupon as soon as practicable cease, it shall thereupon be lawful for the Landlord to enter said demised premises as at the expiration of the lease and remove all persons and property then being in the same, and again have the right to enjoy the premises. The said Tenant hereby expressly waives the service of any notice in writing of intention to re-enter as provided for in Section
There is also a general provision for the arbitration of any differences of opinion or disputes, contained in the 26th paragraph of the lease. But the controversy in question comes directly within the scope of the 20th paragraph quoted, and as it was neither alleged nor sought to be proved that the. landlord had complied with any of the provisions thereof, the fifth counterclaim was properly dismissed and the dismissal should be affirmed.
The judgment appealed from will be affirmed, without costs.
Clarke, P. J., Laughlin, Shearn and Merrell, JJ., concurred.
Judgment affirmed, without costs.
Laws of 1846, chap. 274, § 3.— [Rep.