126 Misc. 260 | N.Y. Sup. Ct. | 1925
This is an action which was tried by the court without a jury pursuant to the usual Trial Term, Part III, stipulation, and was brought by the city of New York to recover for rent for the use of certain space under the Manhattan bridge leased by
The lease provided that the defendant might erect a “ fireproof warehouse and garage on the property * * * all construction to be subject to the approval of the Commissioner of Plant and Structures and by the Bureau of Buildings of the Borough of Manhattan.” It further required that no improvement should be made on the property without like written consent. It is fairly clear, from a reading of the instrument, that the intendment of the lease contemplated the improvement of the premises by the lessee, which, however, as to plans required the written consent of the commissioner; and that the use of the premises for a “ warehouse and garage ” was the dominant purpose of the parties. Plans for such a structure were submitted on June 26, 1923, but were rejected, for reasons which may be assumed as adequate. On November 19, 1923, seven days before the next quarter’s rent became payable, new plans for a two-story garage were filed which the commissioner of plant and structures refused to approve, because he interpreted the lease to limit the construction to a warehouse with incidental garage facilities.
As the words are used in the lease, they must be construed in the sense in which they are commonly understood and as the standard dictionary definitions voice, and we may resort to them for light on the subject. The Standard Dictionary defines “ garage ” as a building for the storage of automobile vehicles. All the dictionaries make “ storehouse ” and “ warehouse ” synonymous. Since the garage is a storehouse of automobiles, it is a special kind of warehouse, and its erection is authorized by the lease. Should the reason be asked for adding the word “ garage ” when it was already comprehended in the larger term “ warehouse,” a likely explanation would be that the former type of structure includes the possibility of storage of combustible fuel for automobiles — a privilege deemed to be embraced within the term “ garage.” Again, it may be argued that the very necessity of a low structure by
If, however, arguments may plausibly be brought forth in support of the interpretation that such a structure was intended, I must nevertheless adopt a view most favorable to the lessee following the familiar canons of construction applicable in such cases, for the reason that the instrument in question was drawn by the plaintiff. As was said in Robinson v. Beard (140 N. Y. 107, 114): “It is right that the construction should be strictly against the lessor in such a case; for thereby a perfectly just result is reached, which is in accord with the circumstances and probabilities of the case. In the construction of this, as of every other instrument, it is not a question of whether better and apter language could have been used to express the intentions of the parties; but whether they are so clearly inferable from the whole instrument as to outweigh the difficulties arising from the inartificial, and possibly inadvertent, use of words and phrases and a nicety of reasoning to prevent their effectuation.”
The willful deprivation by the lessor of the very use of the premises specifically within the legal contemplation of the parties, is for all practical purposes an actual eviction, although not accompanied by an act of physical expulsion. It is not, as in a constructive eviction, the creation by the lessor of a condition in respect to the property which renders impossible the lessee’s full or adequate use of it, but a deliberate and forcible act of trespass on the lessee’s right of enjoyment. Under these circumstances I must hold that the defendant is justified in refusing to pay rent as long as such a condition continues.
I find some difficulty, however, with the defendant’s counterclaim for breach of the covenant of quiet enjoyment. There is no evidence of rescission or abandonment of the lease on the lessee’s part. The very defense of the suspension of rent implies the continuity of the conventional relation of landlord and tenant. Until the tenant terminates the present state of events, virtually an impasse, and elects to rescind the contract, no intelligent or proper computation of his damages under such counterclaim can be made. Judgment is, therefore, directed for the defendant dismissing the plaintiff’s complaint on the merits, with costs, and the counterclaim of the former is also dismissed, but without prejudice.