105 Misc. 185 | N.Y. App. Term. | 1918
The plaintiff herein has recovered judgment for two months’ rent of a theatre in Wilkes-barre, Penn., known as the Wilkesbarre Grand Opera House, under a lease executed by her to the defendant, and also for two monthly installments of an additional sum of money which by agreement made simultaneously with the lease the defendant covenanted to pay to the plaintiff during the term covered by the lease. The complaint alleges the making of the indenture of lease and the making of the agreement; the non-payment of the moneys alleged to be due under these instruments and also “ that the plaintiff has duly performed all the conditions ” of said indenture of lease and agreement on her part to be performed. The answer as originally served denied this final allegation and set up as an affirmative defense and counterclaim that the premises were let for use as a theatre and that thereafter the authorities of the state of Pennsylvania directed the plaintiff to comply with certain “ requirements of the City Inspector and Department of Labor and Industry of the State of Pennsylvania with regard
At the opening of the trial the plaintiff moved for judgment in her favor, claiming that the allegation that the plaintiff had duly complied with the terms of the lease and agreement constituted no essential part of her cause of action and that the denial of this allegation therefore raised no issue, and that the facts alleged in the affirmative defense and counterclaim were insufficient to constitute an eviction. The learned referee sustained these contentions and dismissed the defense and counterclaim but permitted the defendant to plead and to attempt to prove a surrender and acceptance. At the close of the testimony he gave judgment for the plaintiff for the amount demanded in the complaint.
There can be no doubt but that the referee was correct in holding that the defense of surrender and acceptance was not sustained and since no other issue was really litigated this appeal involves only questions of law. The appellant raises numerous technical points of' pleading and procedure upon this appeal, but it seems to me that the record can be stripped of these technicalities, leaving the one substantial question of whether the facts which the defendant claims he could prove if evidence were admitted under the attempted defense dismissed by the referee, would in law constitute an eviction.
There are, however, some more serious technical questions presented by the manner in which the case was tried. The learned referee indicated at the beginning pf the hearings that it was his intention to narrow the issues so far as was practical in order to expedite the trial, but on the other hand since no jury was-present he intended to admit all evidence which might possibly be relevant to any real issue in the case and which might possibly aid either the trial or an appellate court. Before ruling upon the plaintiff’s motion to dismiss the defense and counterclaim, he asked for briefs upon the question of whether the closing of the theatre by public authorities for failure to make substantial and structural repairs as alleged in the answer, could constitute an eviction. After receiving these briefs he decided that neither under the law of Pennsylvania nor under the law of New York could such closing constitute an eviction where the lease did not expressly place upon the landlord the burden of making these repairs. He therefore dismissed the defense of eviction and the trial proceeded upon the defense of surrender and acceptance. Under this issue he admitted practically all evidence which was offered, including proof of the orders by the Pennsylvania state authorities and the subsequent closing
The rights of the parties under the lease and agreement are undoubtedly governed by the law of the state of Pennsylvania where the demised premises are situated, but the defendant contends that since the plaintiff failed to plead the law of that jurisdiction the court could neither receive evidence or make findings of fact in regard to the foreign law but is bound to presume conclusively that the law of Pennsylvania corresponds to the law of this state or to apply our law
In New York state it seems to be well established that the closing of a theatre by the public authorities for failure to make repairs required by their order constitutes no eviction where there was no covenant in the lease on the part of the lessor to make repairs of any character. Gould v. Springer, 206 N. Y. 641. Where, however, the order of the authorities calls for structural alterations which cannot properly be considered repairs and which the parties could not have contemplated that the tenant should make, it becomes the duty of the landlord to make such alterations even though the tenant and not the landlord is required by the lease to make all “ repairs ” or to comply with orders of the public authorities, and failure of the landlord to do so constitutes an eviction. Warrin v. Haverty, 159 App. Div. 840; Younger v. Campbell, 177 id. 403. A question of mixed fact and law may therefore sometimes arise as to whether an order by the public authorities calls for the making of ‘ ‘ structural alterations ” or for the making of “ repairs.” In the present case, however, the defendant has not pleaded that the landlord has failed to make structural “ alterations ” as required by the municipal authorities but merely that she failed "to make “ substantial and structural repairs,” and it seems to me that if there is no contractual obligation imposed on the land
The defendant, however, urges with considerable force that the referee dismissed the defense as insufficient without proof of the law of the state of Pennsylvania although it was stipulated that the defense referred to such law; that although the referee did thereafter make findings of fact as to such law these findings are not sustained by any evidence properly admitted, and that if the defendant were given opportunity to prove the law of Pennsylvania he might be able to show that the closing of the theatre for failure to make structural repairs constitutes an eviction under Pennsylvania law even if the lease does not expressly impose any obligation on the landlord to make repairs. Undoubtedly under that stipulation the defendant had the technical right to prove the law of Pennsylvania to sustain the defense of eviction and the referee could not hold the defense insufficient under the Pennsylvania law without receiving proof and making findings of fact in regard to such law. On the other hand, the referee received briefs from both parties before he decided upon the sufficiency of the defense and although these briefs are not part of the record it appears from the discussion and the statements made by defendant’s counsel to the referee that his brief included the Pennsylvania citation upon
It seems to me, however, unnecessary to consider further the effect of these defects in the record because in my opinion the findings of fact of the law of Pennsylvania in regard to the reciprocal rights and obligations of landlord and tenant under a lease are not relevant in this case. Concededly the law as found by the referee applies only where these rights and obligations are not defined by the lease or agreement of the parties. Where, however, the parties have expressly agreed as to these obligations the terms of the agreement will be enforced by the courts regardless of any rule of law by which their rights and liabilities under the contract would otherwise be determined. In the present case both parties to the litigation claim that the agreement between the parties expressly covers the question of the obligation of the landlord to make substantial repairs, hut the- defendant claims that the contract expressly places this obligation upon the-landlord, and the plaintiff claims that the contract expressly exempts the landlord from such obligation, while the learned referee has decided that the agreement is entirely silent upon this point. The instruments between the parties contain clauses and terms that are vague, inexact and self contradictory and arguments of some force can be made to sustain all of these conflicting interpretations. Nevertheless after careful consideration of the agreements I am strongly inclined to the conclusion that the parties intended and
• The rights of the parties are fixed by the lease and agreement of July 7, 1909. These instruments were executed contemporaneously, they cover substantially the same subject matter, they refer, to and are evidently complementary of each other and must be read together. The indenture of lease contains no covenant on the part of either landlord or tenant to • make repairs and it contains a clause that “it is further understood and agreed that the premises above specified are rented in their present condition and the lessor is under no obligation to make changes, additions or repairs and that no changes to buildings or fixtures can be made without the written permission of the landlord.” If the plaintiff were not only the lessor of the premises but also the owner and if the lease of July 7, 1909, completely covered the obligations of the parties in regard to the demised premises during the terms of the lease, then it would seem that the parties •intended that the landlord should not be required to make either repairs or alterations, and that even if by order of the public authorities the premises could not be used as a theatre until either alterations or repairs.as required were made such order could not relieve the defendant of its obligation to pay rent under the lease. The lease, however, expressly provides that the plaintiff is herself the lessee of the premises under a lease from the Wilkesbarre Gfrand Opera House Company, dated 27th of July, 1907, and it expressly covers the full term of the earlier lease
Weeks and Finch, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.