136 N.Y.S. 64 | N.Y. App. Term. | 1912
This case involves substantially only questions of law. Plaintiff leased to defendant on March 2, 1909, certain premises in this city for a term of five years, beginning May 1, 1909, at an annual rental of $4,500. The 'lease provided, however, that after May 1, 1911, the lessor might cancel the lease on sixty days’ written notice. The controversy arose out of the following clause: “And the lessee hereby agrees to further and promptly execute and fulfill all the ordinances of the» city corporation applicable to said premises; and all orders and requirements imposed by the board of health and the police department for the correction, prevention and abatement of nuisances or other grievances in, upon or connected with said premises during said term, or other grievances, at her own expense.”
In support of the judgment, respondent urges:
1. That, under the general terms of the lease, the language in the clause in controversy should not be interpreted to require defendant to make an alteration or addition to plaintiff’s premises of so permanent a nature, and cites the case of Kalman v. Cox, 46 Misc. Rep. 589, in support. Even á casual reading of the opinion, however, will show that the language of the clause there interpreted differs from the one in the lease at bar in that the phrase- “ for the correction, etc., of nuisances ” in the Kalman case- qualified all the ordinances or orders which the lessee agreed to- obey, whereas, in the case at bar, it qualifies only the orders of the health and police departments, leaving defendant’s agreement to execute the ordinances of the city corporation a general 'and unconditional one. As the order to erect a fire-escape was one to comply with section 103 of the building code, it seems to me that, it was included in the provisions of this clause of the lease, and the defendant was bound to comply therewith. Harder Const. & Realty Co. v. Lee, 74 Misc. Rep. 436.
It is true that in both the Harder case, supra, and in Markham v. David Stevenson Brewing Co., 104 App. Div. 420, therein cited, there were contained in the lease general covenants to repair from which it might be clearly inferred that a permanent, substantial, or even structural, defect required to be corrected by the appropriate department of the city government, must be made by the tenant, whereas, in the case at bar the lease contains no such general covenant, but,
Respondent’s second and principal point, and the one upon which, apparently, the learned trial judge below relied, is that chapter 899 of the Laws of 1911, under which the bureau of fire prevention was established, and which became effective October 19, 1911, caused the superintendent o'f buildings to be superseded by the fire commissioner in the enforcement of laws and ordinances in respect of fire-escapes. See the act (§ 4) and the thereby newly added section 774 of the charter. It may be that had the plaintiff refused or persisted in the refusal to obey the lawful order of the superintendent of buildings issued May 24, 1911, the fire commissioner and not the superintendent of buildings would have, through the act of 1911, become the proper official to compel obedience, but that situation did not arise. Defendant being under an obligation to obey an ordinance of the city under direction of the duly appointed officer, the superintendent of buildings, refused to do so; and plaintiff properly obeyed that lawful mandate, and is entitled to be reimbursed therefor.
Judgment reversed and new trial granted, with costs to appellant to abide event.
Lehman, J., concurs; Seabury, J., dissents.
Judgment reversed.