101 N.Y.S. 574 | N.Y. App. Div. | 1906
The action is brought to compel the -removal of a stone stoop and steps and a railed areaway in front of Nos. 1424 and 1426 on the easterly side of Broadway in the city of New York, between Thirty-ninth and Fortieth streets, erected and maintained by the defendants, on the ground that they constitute a public nuisance in that they are encroachments upon the street.
The stoop extends into the sidewalk beyond the budding line about seven feet and the areaway about six feet and they were erected and constructed in 18Y0 under claimed license from the city.
The plaintiff’s complaint was dismissed on the ground that it failed to establish the easterly line of Broadway, and hence did not prove that the structures were in the street or sidewalk. We think the plaintiff did make this proof and that the dismissal of the complaint was error. Broadway was widened and' straightened under chapter 890 of the Laws of 1869, known as tlie Broadway Widening and Straightening Act. Pursuant to the provisions of this act. the easterly and westerly lines of Broadway were fixed,, and a map certified- and filed September 16, 1869, showing such lines. On this map in the locality in question the distances from the west line of Sixth avenue to the easterly line of Broadway on each side of each cross street, are given in feet and inches, and in the same manner the distances from the east line of Seventh avenue to the westerly line of Broadway are specified. In the straightening of Broadway in certain sections a' new building line was established, but on the east side of Broadway'between Thirty-ninth and Fortieth streets the old building line was preserved.
On the trial the plaintiff proved by competent engineers familiar with.the locality and the' landmarks and street lines, that they measured the distance-on Thirty-ninth and Fortieth streets from the west line of Sixth-avenue to the building line on the east side of Broadway, and that they corresponded with the distances shown by the distances on the map of 1869, and that the structures complained of encroached upon the street from six to seven feet. This evidence was not disputed and could -not well be. It established the east line of Broadway and the encroachment. Even if the defendants had a license to construct originally, it was revokable and
The defendant Farrington is the tenant of the premises in question, under a lease in writing, by which he is bound to make certain repairs. Each defendant served his answer upon his codefendant,, demanding that in case a removal of the structure should be decreed it should be adjudged that the other bear the expense. The law ■ (Code Civ. Proe. § 521) permits such an issue to be determined in the one action, and both the landlord and the tenant have asked that we determine on this appeal the question of law involved.
When Andrews Sober, under whose will the defendants hold title as trustees, purchased the premises, the encroachments existed as they now are and defendant Farrington was tenant. In 1902 he entered into a further lease with his codefendant whereby he covenanted that he would “ do all repairs required to the walls, ceiling and paper, plumbing, elevator, ranges, pipes, fixtures, glass and the woodwork in and about the said premises, and repair and make good any damage occurring, excepting by fire or the elements, to said building, or any portion thereof, and do all inside and outside repairs necessary to said premises, including roofs, sidewalks and yards thereof, and * * * comply promptly with all the rules, regulations and ordinances of the Board of Health, Fire Department and-Building Department, or other city departments and city ordinances applicable to said'premises.” In another portion of the lease it is provided that the tenant shall quit and surrender the premises at the expiration of his term in as good state and condition as they were at the commencement, reasonable use and wear and damage by the elements excepted; and it is further provided that he shall not make any alterations, additions or improvements on the demised premises without the written consent of the-landlord.
We see nothing in these covenants or in the lease as a whole which imposes any obligation upon the tenant to incur the expense of removing the encroachments in question. Certainly their removal was not in the minds of the parties when the lease was entered into. The tenant’s agreement to comply with all the rules, regulations and ordinances of the various city departments did not contemplate the tearing down of the stoop and steps and building a new entrance to the building, or the abandonment of the areaway and the providing
The landlord insists that because the encroachment or nuisance existed, and the .present tenant was in possession at ¡the time of the leasing, a more liberal rule applies to him. This circumstance, on ■ the, contrary, we think, is favorable to the ten'ant. If a landlord. leases premises, with an existing public nuisance, thereon,, there certainly is no implied agreement that the-tenant will be to the expense of- remedying the evil. If the structure is unlawful as between the owner and 'the tenant, it is incumbent upon-the! owner to make it legal, certainly in the absence of an express agreement by the tenant so to do. . ■
The judgment should be reversed and a new trial granted, with costs to the appellant against the respondent trustees to abide the event. •
Patterson,, Ingraham, McLaughlin and Scott,¡ JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant against respondent trustees to abide event. Order filed. '
