195 A.D. 377 | N.Y. App. Div. | 1921
The plaintiff, the landlord, sues the defendant, the lessee, for rent. The only answer is a counterclaim for the moneys paid by the defendant in making certain alterations to the building required to be made by the fire department of the city of New York.
The sole question in the case is whether the changes required by the fire department were changes which under the lease the defendant was required to make at its own expense. Under the 7th paragraph of the lease the lessee was required to make all necessary repairs on the outside as well as the inside of the building. The lease then reads: “And the party of the second part further covenants and agrees at its own expense to comply with and execute all lawful orders and regulations of the Board of Health, Police Department and city corporation relating to said premises."
This requirement of the fire department was a requirement of the city government. Cases have arisen involving a question as to whether the intent of the lease was to require the tenant to comply with these orders at his own expense, or whether the changes ordered were so structural as not to .be within the intended requirement of the lessee to make the changes at his own expense. There have been cases where a portion of the building extended out into the street which had been permitted for many years prior and where the city required the extension to be removed. (Herald Square Realty Co. v. Saks & Co., 215 N. Y. 427.) In such cases ordinarily
In Gould v. Springer (206 N. Y. 647) Judge Vann says, in discussing this rule of law: “ The rights and obligations of the parties depend on the lease. There was no covenant on the part of the lessors to make repairs of any character, and, hence, as between themselves and the lessee they were under no obligation to comply with the order made in 1904. [Citing cases.] While they might have been subject to an action for a penalty brought by the city that was no concern of the lessee and gave him no right to compel action by the lessors. Even if non-compliance should result in the closing of the theatre, the lessee would have no remedy against the lessors, for he had failed to protect himself against such a contingency by an appropriate covenant.”
In Gregory v. Manhattan Briar Pipe Company (174 App. Div. 106) some floors were required by the building department to be strengthened, and it was held that the tenant was
In Jacobs v. McGuire (77 Misc. Rep. 119) a fire escape was • ordered for which the lessee was required to pay. In that case the opinion reads: “ I do not see, however, how the distinction which I have pointed out between the form of the leases referred to warrants our holding that the erection of a fire-escape, rendered necessary by the very use of the premises made by the tenant, was outside of the contemplation of the parties, evidenced by the agreement of the tenant to comply with the appropriate city ordinances.”
The changes required as a condition of the granting of a permit to the lessee to use this building as a garage was by reason of the fact of gasoline left in the cars when they were stored there. The requirement, therefore, was peculiarly the result of the very use to which the tenant was putting the building. After the termination of the lease in five years the building may not be used for a garage, but may be used for stores or for other purposes. There is every reason in my judgment for holding that a requirement of the city departments made by reason of the very use to which the tenant is putting the building and made as a condition to the issuance of a permit for such use, should rest upon the tenant, not upon the landlord.
The judgment and order should, therefore, be affirmed, with costs.
Clarke, P. J., Laughlin, Page and Merrell, JJ., concur.
Judgment and order affirmed, with costs.