Bleecker v. Ballou, 3 Wend. 263

Bleecker v. Ballou

3 Wend. 263 | N.Y. Sup. Ct. | 1829

*266 By the Court,

Savage, C. J.

Had there beert no

decjsions 0f courts upon similar covenants, I should think b clear that the parties intended precisely what the language °*" contract imports ; that the lessee ran the risk of all taxes, charges and impositions. These are not words without meaning; nor can I suppose that they were used as synonymous. They import that the landlord was to receive his rent, and during the term, was to be subject to no expense on account of the demised premises. Such is the language of this court in the case of The Corporation of New-York v. Cushman, (10 Johns. Rep, 97,) upon a similar covenant. By the terms of the covenant in that case, the tenant bound himself to pay “ all such duties, taxes, assessments, impositions and payments, as shall during the term hereby demised be is-issued or grow due and payable out of and for the said demised premises.” The action there was for an assessment on the lot for its benefit, by the extension of Chamber street; and the court said the demand falls within the plain sense and language of the covenant. They enter into an examination of some of the English cases, and shew upon the principles acted on in some of them, that the assessment was binding on the defendant."

There is no doubt that the assessment in question was not a tax, that being a sum imposed, as it is supposed, for some public object. (11 Johns. Rep. 77.) And as to such, it is said-that a covenant like the one in question must be enforced without any deduction for a tax imposed by statute subsequent to the lease, (Carth. 135;) but in other cases it is said that a covenant to pay taxes extends only to taxes in 'use when the lease is executed. (2 Lev. 68.) In the case of New-York v. Cushman, the court say that the- assessment "was made by virtue of a law in force when the lease was made, which it was presumed was in the contemplation of the parties. Butin Brewster v. Ketchin, Ld. Raym. 317, a covenant to pay a rent charge without deducting for any taxes, was held to extend to all taxes of _ a similar nature, and for like purposes with any before imposed though not then subsisting. If this principle be correct, then, charges and impositions may refer to such charges and impositions as are known to be made upon other property similarly situated. *267The premises in question were leased as a village lot, and therefore the par ties may have anticipated that within the term granted some improvements might become necessary and proper, which would require charges and impositions, If the covenant is to be confined to such charges as were imposed when the lease was executed, the tenant was not liable to pay the United States tax which was subsequently imposed; and for the same reason, he should not be required to pay any tax growing out of an expenditure under any laws of the village. Such a construction would not meet the views of the parties when they entered into the contract. At that time no doubt a rent was agreed on proportionate to the then value. If the property became enhanced in value, the defendant had the benefit of the increased value. And if the improvement of the property required some expenditure, there is no hardship in such expenditure being made by the tenant, who has reaped the advantage. It is true the paving is a permanent benefit to the property, and extends beyond the term; and although that may benefit the landlord, yet it cannot be said to injure the tenant. The terms of the contract seem to me to be clear and explicit, and upon them I place my opinion. The plaintiff is entitled to judgment on the demurrer.