207 A.D. 448 | N.Y. App. Div. | 1923
The plaintiff brought this action to enjoin the defendant from cutting off the heat and elevator service during the night time in certain premises occupied by plaintiff as tenant. Plaintiff uses the premises for manufacturing purposes. The defendant is the landlord. The Special Term decided in favor of the defendant and dismissed the complaint on the merits.
The plaintiff has occupied a portion of the building continuously since March 1, 1918. The building in question is known as 11-17 Bond street and 16-20 Hanover place, borough of Brooklyn, city of New York. His present lease expires May 31,1924, and contains an option to renew for two years thereafter. The first lease was made on or about the 29th day of January, 1918, between J. S. Bailey Company as landlord, and appellant as tenant, and therein the landlord let to the appellant all the unoccupied part of the seventh floor of the said building extending along the Hanover place front thereof, approximately 4,000 square feet, for the term of two years, from March 1, 1918, and ending the 29th day of February, 1920, the lease containing a covenant that the tenant should have the right to renew it for a further period of three years; thereafter and prior to June 1,1919, the same parties made a new lease whereby said landlord leased to the appellant premises in said building described in said lease as all of the unoccupied part of the sixth floor of said building extending along the entire front of the premises on Bond street, approximately 125 feet, and being 125 feet in depth, for the term of two years, from June 1, 1919, and ending May 31, 1921, that lease containing a covenant that the tenant should have the right to renew the same for a period of one year upon the same terms and conditions; thereafter and prior to July 1, 1921, the same parties entered into a further lease whereby the landlord let to the appellant as tenant all of the sixth floor of said building for the term of two years and ten months, ending May 31, 1924, said lease containing a covenant that the appellant should have the privilege of renewing the same for an additional period of two years to end May 31, 1926, at the same rental.
Each of the leases contained the following covenant:
“ The landlord agrees to furnish such heating to the demised premises as the plant at present installed will provide.”
All the rights and obligations of the Bailey Company have devolved upon the defendant.
At the time that the three leases to plaintiff were made there was installed in the building a combination heating and sprinkler system. During all the time this system was in operation heat was furnished to plaintiff during the night as well as the day. The defendant claims, and the court has found, that the heat furnished to the plaintiff at night was not intentionally furnished but was the result of keeping the water warm in the sprinkler pipes and that this was necessary with the heating system then in use. The court has also found:
“ 17. The only means of heating said premises upon the sixth floor of said building is from a central plant situate in the basement or cellar of said building, and over which the defendant has sole and exclusive control, and that the power to operate the elevators that give access to said sixth floor is also under the control of the defendant.
“ 18. That continuously since March 1st, 1918, and to the month of October, 1922, heat in said building was supplied by a combination sprinkler and hot water heating system.
“ 19. That the said sprinkler and hot water heating system was the plant installed in the basement or cellar of the building in which the demised premises are situate at the time the leases set forth in findings 2nd, 3rd and 4th were entered into.”
For the purpose of discussing what seems to be the first question involved, no other facts are necessary.
The leases all provided that “ the landlord agrees to furnish such heating to the demised premises as the plant at present installed will provide.” If this action were brought under the first lease to compel the landlord to furnish heat at night, I think it would then be a question to be determined from the construction of this clause of the lease, whether heat was to be furnished at night or not. But I think the course of dealings of the parties has changed the question, to some extent at least. It is undisputed that when the lease was renewed each time the landlord knew that the tenant was using the leased premises for night work; that heat was essential te enable him to do so, and that the plant at that time installed
“ In the construction of contracts, where there is no ambiguity, it is the duty of the court to determine their meaning. Moreover, where the terms and language of the contract are not disputed, its legal effect is a question of law to be determined by the court. It is always the duty of a court, in construing a written instrument, if possible, to ascertain the intention of the parties * * *.
“ If this contract is to be regarded as somewhat indefinite or ambiguous, we may resort to the surrounding facts and circumstances as they existed when it was made to aid us in its interpretation and also consider the practical construction which the parties have given it. Its interpretation by them is a consideration of importance. As was said by Swayne, J., in Insurance Co. v. Dutcher (95 U. S. 269, 273): ‘ The construction of a contract is as much a part of it as anything else. There is no surer way to find out what parties meant, than to see what they have done.’ (Woolsey v. Funke, 121 N. Y. 87.) ” (Sattler v. Hallock, 160 N. Y. 291, 297,301.)
When the lease was renewed I think each party was entitled to have and to expect to furnish heat to the same extent and of the same character as had theretofore been furnished. The intent of the parties is the controlling factor, when not illegal, in construing an agreement. What possible intent could the parties to this lease have had when they renewed it in the same terms other than that the lessee should have the same heat under the new agreement that he had had under the old. If this provision in the lease was subject to change by the installation of a new heating system it should have been provided for. The heating plant then installed furnished heat for both day and night work. If the landlord did not desire or intend to furnish such heat in the future it was his duty to inform the lessee and modify the agreement, accordingly. If notified of this change of intention, the lessee could have declined the lease or perhaps procured a reduction in rent. But he had no opportunity to do any of these things. He was led to believe that under the new lease he would receive the same as he did under the old, and in fairness and justice he was entitled to receive it.
I think every factor, bearing upon the construction of this lease tends to support the plaintiff’s construction. The covenant itself, the practical construction of it, and the conduct of the parties viewed as one of the surrounding circumstances in the light of which the parties entered into the lease all lead to the conclusion that the tenant was to have the use of the elevator at night.
I recommend that the judgment be reversed upon the law and the facts, with costs, and judgment be directed in favor of the plaintiff for the relief demanded in the complaint, with costs.
Kelly, P. J., Rich, Manning and Young, JJ., concur.
Judgment reversed upon the law and the facts, with costs, and judgment unanimously directed in favor of the plaintiff for the relief demanded in the complaint, with costs. The order entered shall provide for the necessary reversal of findings and for new findings by this court. Settle order on notice.