160 N.Y.S. 1060 | N.Y. App. Div. | 1916
Plaintiff is the owner of two adjoining buildings upon Twenty-third street in which are lofts which are rented to various parties. In one building there are five stories and in the other six, so that the floors in the different buildings are not upon the same level. Defendant leased a loft in one of these buildings for the term of one year and eight months. Prior to the making of the lease the plaintiff had been directed by the building department to provide additional fire escapes for the several lofts, including the one leased by the defendant. After the defendant had assumed occupation of the loft in question the plaintiff broke through its side wall into a closet there situated and constructed a stairway into the lofts in the adjoining building. This was done with the approval of the inspector of the building department as a proper way of complying with the order to provide an additional fire escape for the building. By reason of this act of the plaintiff the defendant was deprived of a substantial portion of its floor space, was compelled to readjust its machinery, to cancel some orders and to store some
In the 12th paragraph of the lease it is provided that the tenant shall “ conform to the resolutions governing said house, and to any reasonable alteration or regulation that may be deemed necessary for the protection of the building, and the general comfort and welfare of the occupants of the same.” Even if it is not expressed, such a covenant would be implied. The landlord had, we may assume, three ways of conforming to the direction of the. building department: First, by building fireproof interior staircases, which is not considered material because the injury to the defendant would have been greater with such construction than with the construction adopted; second, the building of exits into an adjoining loft, which was the method adopted; third, the building of a rear exterior fire escape. In determining which method should be adopted the landlord was required to consider not only its own interest in the future management of the property, but the interests of the tenants of the different lofts in the two buildings, as well as the safety of the employees. The method chosen was approved by the fire department and was confessedly as safe, if not safer, than the providing of an exterior fire escape in the rear. There is no charge of bad faith or of an intent to injure the defendant in the choice made by the landlord, and the method chosen will, under the circumstances, be deemed the alteration required by the building department in order to provide greater safety to the employees from fire. If such be the law the question becomes one easy of solution. The eviction was not wrongful so as to authorize a complete suspension of the rent within Christopher
The determination appealed from is, therefore, affirmed, with costs.
Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.
Determination affirmed, with costs.