Kalashetz v. Rafsky

154 N.Y.S. 218 | N.Y. App. Term. | 1915

Bijur, J.

Plaintiff sues for damages for breach of a written agreement of defendants to “ remove ” four “violations” imposed by the tenement house department on certain premises which plaintiff was at that time (October, 1905) about to purchase from defendants. Plaintiff insists, and successfully maintained below, that to “ remove violations ” meant to do the work required by the violations. He also maintains that, if the phrase be ambiguous, subsequent conversations between the parties, in one of which one of the defendants “ promised me it would be fixed,” became material and proof that what was meant was actually doing the work.

In the first place, I do not regard the phrase as ambiguous. A person who desires work, alterations or repairs to be made to a house before he takes title, can very readily express that requirement in natural terms. To express it in terms of “ removing violations ” would be a circumlocution unreasonable and unnatural. But however that may be, in this particular case one of the most important “ violations ” was that certain alterations had been , made-in the house a year and a half before this .agreement was made, and the violation consisted of “no plans filed and approved.” Consequently, on the very face of the paper, if any ambiguity existed it was by the nature of the case resolved against plaintiff’s contention. No amount of physical repairs or alterations could remove a violation which consisted of the fact that previous repairs had been made without the approval of the plans therefor. Defendants proved conclusively by the records and officials of the tenement house department that the four violations enumerated had been canceled of record in the department. What actually happened was that six years later plaintiff, having perhaps partly been urged thereto by a refiling of these violations by certain inspectors (for reasons which do not appear), determined to reconstruct part of the premises, and finding, under the Tenement House Law as amended in 1912, that this would have to be done with some slight reconstruction, desires to charge defendants with the expense therefor.

I can see no basis for the claim either under the contract alleged to have been broken or in any principle of law.

The learned judge below also submitted to the con-. sideration of the jury as one of the elements of damage rents lost during the period of reconstruction. Plaintiff-appellant concedes, as it must, that this was improper, but urges that it was not prejudicial because the verdict was for less than the amount which plaintiff claims the repairs cost.

In view of our opinion on .the merits of plaintiff’s claim, this error becomes immaterial,- otherwise it would have, of itself, required a reversal.

Judgment reversed, with costs, and complaint dismised, with co,sts to appellant.

Guy and Page, JJ.; concur.

Judgment reversed, with costs.