180 A.D. 542 | N.Y. App. Div. | 1917
This action is brought to recover the sum. of $2,192, being the amount disbursed by plaintiffs in complying with certain orders of the State Department of Labor. On February 25, 1909, plaintiffs entered into a written lease of the entire building known as Nos. 161-163 West Eighteenth street, New York city, being forty feet wide and six stories high. The term of the hiring was from May 1, 1909, until February 1, 1919, at a graduated rental, beginning with $5,500 per annum. The building was leased to be “ used or occupied only for the business of cabinet makers and wood workers,” and defendant agreed to make certain specified repairs at- or before the beginning of the lease. The lease provided that “ the premises hereby demised are also leased on these further covenants and conditions,” one of which was: “ That the lessee shall promptly perform and observe all lawful regulations and requirements of the municipal and other public authorities, and shall also promptly comply with and execute all rules, orders and regulations of the New York Board of Fire Underwriters in respect to the demised premises, and the use thereof, and the occupants therein, except any orders to remedy structural defects, such as the replacing of main walls or main supports of foundations or the main structure of the roof.” Another covenant was: “The lessee agrees that during the term hereby demised they [sic] will make all repairs to said building both inside and outside at their own cost and expense, with the exception of repairs necessary to remedy structural defects,- such as the replacing of main walls or main supports of foundations or the main structure of the roof.”
Plaintiffs entered into possession of the demised premises. On July 26, 1915, the Department of Labor of the State of New York duly issued two orders for the 'doing of certain work upon these premises, then being used for manufacturing purposes under the terms of the lease. These orders were issued to plaintiffs as lessees and defendant was duly notified thereof, but refused to comply therewith. One of the plaintiffs having been, arrested for non-compliance with the order, and neither landlord nor tenant being willing to concede liability to comply with the orders, it was agreed between them that the work should be done under plaintiffs’ direction, after
“ 1. Enclose all interior stairways serving as a required means of exit and the landings, platforms and passageways connecting therewith on all sides with partitions of fire-resisting material extending continuously from the basement to three feet above the roof. All openings to said partitions are to be provided with self-closing doors constructed of fire-resisting material (20 days).”
The cost of complying with this direction was $1,785. A requirement that an inclosure of fire-resisting material shall be provided around an interior stairway, from basement to roof, is a structural change, for which ordinarily the landlord is liable, and not the tenant. (Younger v. Campbell, 177 App. Div. 403.) But in the case at bar the tenants have agreed that they will “ perform and observe all lawful regulations and requirements ” of the public authorities, and then have defined what their liability is, by excepting therefrom certain specific structural changes. That is, the tenants have bound themselves under the terms of the lease in question, not only to comply with such orders of the public authorities as require minor changes, or changes due to the nature of the business carried on in the factory, but have bound themselves as well to comply with all orders requiring structural changes, save such as are specifically exempted from their agreement, viz., replacing main walls or main supports of foundations,- or the main structure of the roof. That this language was deliberately employed, with a full knowledge of its effect and purpose, is shown by its repetition in the clause regarding repairs, wherein the lessees agreed to make all
The order appealed from is reversed, with ten dollars costs and disbursements, the motion to overrule the demurrer is denied, with ten dollars costs, and said demurrer is sustained.
Clarke, P. J., Laughlin, Scott and Shearn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and demurrer suatained.