102 Misc. 117 | N.Y. App. Term. | 1917
Lead Opinion
This proceeding was brought to oust the tenant from certain premises on Sheepshead Bay, in the borough of Brooklyn, New York city, for the failure to pay rent. The premises consisted of a plot of land upon which was erected by the tenant sixteen bungalows in accordance with the terms of the lease. The bungalows were sublet by the tenant for the season of 1917 to various subtenants. The subtenants agreed to pay their rent in installments, the last installment to be paid not later than the 1st day of August, 1917.
The lease provided, among other things, that the tenant would erect sixteen frame bungalows upon the premises and would pay $1,800 per annum as rent for the first two years; and for the remainder of the term, which is eight years, a sum equivalent to one-half of the rental, or income, received by the tenant from the subtenants. The lease further provided that such rent would be paid in each year of the term, “ as soon as the same has been collectéd by her (tenant) for each year from the occupants of all the bungalows.” The owner was to pay the taxes and assessments, and upon his failure to pay them the tenant was to have the privilege of paying those charges and deduct the amount of such payments from the rental, but it does not appear from the record that any default in the payment of these charges has been suffered by the landlord.
It appeared upon the trial of this action that at the time of the beginning of this proceeding, which was the 14th day of July, 1917, the tenant had collected from all the subtenants sums aggregating $1,704.28. The trial judge found that one-half of that amount, i. e., $852.14, was due to the landlord from the tenant, and entered a final order ousting the tenant for failure to pay that sum.
It is the contention of the tenant that the lease did not create the relation of landlord and tenant; that the relation existing was that of partners, and that the landlord was relegated to an action for an accounting. That contention has little weight. The lease between the parties was complete in all its terms. It was
The real controversy before us, however, is the question as to whether or not this proceeding was prematurely brought. The precept is dated July 14,1917. The lease provides that the rent should be paid by the tenant in each year ‘ ‘ as the same has been collected by her for each year from the occupants of all the bungalows.” I am satisfied that it was the intention of the parties to this lease that one-half of rents as collected should become the property and be turned over by the tenant to the landlord as soon as collected from the subtenants. To hold otherwise would be to place a construction upon this lease which would allow the tenant to resist payment of the rent until she had collected the entire sum from all the tenants, and, to carry such an argument to its logical conclusion, one would have to say that if one of the subtenants failed or refused to pay all his rent for a given year the landlord could not enforce payment of the rent. Of course, this the parties never intended.
There is nothing in the lease except the provision whereby the tenant may, upon default of the landlord in the payment of taxes and other charges, pay and deduct the amount so paid from the amount of the rent stipulated to be paid, and so far as the record here discloses there is no claim that she has been compelled to make such payments, or that she is entitled to any
In placing this construction, upon the lease we are not, as has been suggested, making a new lease for the parties. We are simply construing the lease which they themselves have made.
The final order and the order denying the motion for a new trial should be affirmed, with costs.
Clark, J., concurs.
Dissenting Opinion
I am in accord with my associates in the conclusion that no partnership relation arose by virtue of the lease between the parties; but I cannot follow them in holding that the proceeding was not prematurely brought. The result reached by them — meritorious though it may be — is not, in my opinion, within our power to attain. The parties themselves made an elaborate agreement of lease defining their mutual rights and obligations concerning an important business enterprise in which they were to be mutually concerned for a term of ten years with a privilege of a renewal for five years longer at the option of the tenant. That which they deliberately chose to stipulate is binding upon them. The court cannot change the terms of the agreement nor substitute a new one in its place. Construction —not creation — of the contract is the function of the court. The language employed by the parties must be given its usual interpretation, and, as I read the mooted clause, the language is entirely plain and unambiguous. When the proceeding was begun some of the rentals from
Order affirmed, with costs.