67 A.D. 531 | N.Y. App. Div. | 1902
The action was brought to recover the rent due on April 1,1901, for certain premises in the city of Yew York, and th.e only question presented is whether the lease under which the plaintiff claimed was terminated by a fire which occurred upon the premises before the rent became due. The lease in question was dated May 1,1887, and leased the house *and lot “ belonging to the said party of the first part, situate in the City, County and. State of Yew York, and known as Yumber 206 East One Hundred' and Twentieth (120) street, Yew York City, with appurtenances, for the term of Three (3) Years from the first day of May, 1887, One Thousand Eight Hundred and Eighty-seven, at the yearly rent or sum of
On March 18 or 19, 1901, there .was a fire upon the premises which seriously injured the building, so that it was ordered to be taken down by the building department, and subsequently, on the thirtieth of March, the defendant notified the plaintiff that in consequence of the building having been so injured by fire as to be untenantable and unfit for occupancy, the defendant surrendered the leasehold and premises. There was also an agreement between the parties to the lease, dated July 1, 1887, which recited the lease and that the house erected on the premises “ has been and is now insured in the sum of $5,000.00, and the loss in case of fire is made payable to the mortgagee; ” that by the lease the defendant had agreed to keep the premises insured and had paid to the plaintiff thirty dollars, being the proportionate part of the premium due under the policy of insurance, and provided that in the event of the said premises being damaged by fire, or wholly destroyed' thereby, the lessor would pay to the lessee the amount which the insurance company should pay under said policy to repair the damage done, or rebuild in case the premises were wholly destroyed, and that in the event that the lessor should neglect or refuse to pay to the lessee the amount so paid by the insurance company, then the lessee should retain the rent thereafter to become due until the amount
It is quite apparent from the lease and agreement that the parties had in mind the possibility of the destruction of the building, and provision was made for the happening of that contingency. The building (not the lessee’s interest) was to be insured, and the amount paid by the insurance company was to be paid to the lessee. He was to make all the repairs to the building, and in case it was destroyed by fire was to rebuild. This is entirely inconsistent with his right to terminate the lease upon the building’s being destroyed by fire; and this conclusion is much strengthened when we con- ' sider the terms of the lease and the character of the building. It was proved that the defendant did procure a policy of insurance upon the building, and that the insurance company paid to him the sum of $2,250 as the amount of damage to the building.
The defendant, however, claimed that under the statute (Real Prop. Law [Laws of 1896, chap. 547], § 197) which provides that “ where any building which is leased or occupied is destroyed or so injured by the elements or any other cause as to be untenantable tod unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises and of the land so leased or occupied; and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender ” — he could surrender the possession of the leasehold and was not liable for the subsequent rent.
We think this lease, and the agreement, to which attention has been called, is an express agreement to the contrary, by which it was clearly understood that the term should continue notwithstanding the destruction of the building, within the rulé as stated by Judge Andrews in Butler v. Kidder (87 N. Y. 98). The provisions in this lease by which the defendant agrees to insure for his own and sole benefit, “ and will have no claim and demand on the party of the first part for any damage or loss on building in case of fire,” • but provides that in case of the destruction of the building by fire' or otherwise, he may rebuild the same and erect another building, and the agreement of July, 1887, under which the tenant was
It follows that the verdict was properly directed for the plaintiff, and that the judgment and order should be affirmed, with costs.
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Judgment and order affirmed, with costs.