127 N.Y.S. 253 | City of New York Municipal Court | 1910
Action tried before tbe court without a jury. The plaintiff seeks to recover damages under certain covenants of a lease for the failure of the defendant to restore and rebuild another building on the rear of the demised premises, which was destroyed by fire.
The lease in question was executed on the 1st day of May, 1887,. between this defendant and the plaintiff’s assignor, covering premises Mo. 206 East One Hundred and Twentieth street, in the borough of Manhattan, city of Mew York, with the appurtenances, for the term of three years at the annual rent in said lease mentioned. Said lease contained two renewals, the first for twenty years from May 1, 1890, and the second for twenty years from May 1, 1910,
It is necessary to refer to the covenants of said lease which are made applicable to the important issues involved herein, and which covenants read as follows: “ That at the expiration of the said term the said party of the second part will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear -thereof will permit, damages by the elements excepted. * * * The said party of the second part agrees to keep said premises insured 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. And the party of the second part agrees to do all repairs on said premises, if any,
When said building was destroyed by fire, as heretofore -stated, said defendant, on the 30th day of March, 1901, immediately gave notice to 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 premises, and that the lease was at an end under •the provisions of section 227 of the Beal Property Law (Consol. Laws Annot., p. 5046).- Thereupon an action Vas brought by the plaintiff against said defendant in the Supreme Court, Pirst Department, to recover the rent due on April 1, 1901, in which action said plaintiff was successful and obtained a judgment, which was affirmed. Lehmeyer v. Moses, 67 App. Div. 531. On the affirmance of said judgment on appeal, Ingraham, J. (writing the opinion for the court), in part says: “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 day 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 récited the lease and that the house erected on the premises ‘ has been and is now insured in the
The defendant, however, contends that the affirmance of the judgment for the rent sued for is not res adjudicata to the case at bar (this will be seen hereafter), but claims that under the statute (Heal Prop. Law [Consol. Laws, chap. 52, art.-7, Laws of 1909] § 227), which provides that “where any building which is leased or occupied is. destroyed or so
_ It further appears from the facts herein that subsequently to said fire and the collection of the insurance money said defendant erected upon the front of said premises a brick building to the height of one story, with stores,, about twenty-five feet in front and rear and about fifty feet in depth, with a frame addition immediately in the rear of said front building and connected therewith for toilet purposes, about four feet square, 'which premises were thereafter surrendered with the building thereon to said plaintiff about May 1, 1910; that no building was erected immediately in the rear of said new building in place of the frame building destroyed; that said building erected and surrendered to the plaintiff was and is of greater fee and rental value than the frame building destroyed.
The question now arises, Has the defendant complied with the covenants of the lease by the erection of the brick building on the front of said lot to about fifty feet and not erecting or continuing the front building to the depth of said lot to the dimensions of the lot where the -old frame building formerly stood? By the covenants of said lease defendant agreed that he would quit and surrender said premises in as
What was contemplated in the minds of the parties to the lease under the covenant “ that in case of the destruction of the said building by fire or otherwise party of the second part' may rebuild the same and erect another building ? ”
Plaintiff also seeks to recover damages for waste in putting up a different structure on the premises than the one leased. Waste consists of some definite physical injury to the premises leased. This is shown by reference to the earlier definitions, as, for instance, that of Blackstone, who calls it “ a spoliation or destruction in house, garden, trees and other corporeal hereditaments.” 2 Black. Conim. (Sherwood’s ed.) 281. On principle it follows that, by the covenant of the lease in the action at bar that said lessee would not make any alterations in the premises, the erection of the building on the front of said lot has been held to constitute waste. Agate
Judgment for plaintiff.