151 N.Y.S. 817 | N.Y. Sup. Ct. | 1914
The complaint sets forth a lease by the plaintiffs to defendant’s assignor of certain premises for fifteen years from May 1,1899, to May 1,1914, and the assignment of the lease to the defendant, subject to its terms. The particular term at issue is: The tenants ‘ ‘ agree that they will pay all taxes and assessments which shall be levied or imposed upon said premises during the demised term when such taxes or assessments shall become due.” The plaintiffs claim that the defendant failed, on request, to pay the first half of the taxes for the year 1914, and that he is liable therefor. The answer sets up a surrender of the premises to the plaintiffs, accepted by them on April 30, 1914, and by way of affirmative defense that the defendant and his assignors have paid taxes on the premises for a total of fifteen years, and that until 1911 the taxes were imposed in the month of September and payable on the first Monday of October in each year, of which the respective parties had knowledge, and because of which they intended to obligate the lessee to pay only such taxes as were imposed and payable during the demised term and for a total of fifteen years. It must be assumed for the purposes of this •motion that there was such an actual surrender of the lease on April 30, 1914, and acceptance thereof by the plaintiffs. Is the defendant liable to pay a tax which did not become due and payable until after his surrender of the premises because of the covenant above quoted, by which he agreed to 1 ‘ pay all taxes * * * which shall be levied or imposed * * * during the demised term when such taxes * * * shall become due? ” The cases relied upon by the plaintiffs do not govern this case. In Ogden v. Getty, 100 App. Div. 430, the covenant was to pay ‘ ‘ all such taxes as should during the said term be laid, levied, assessed or im-. posed on or grow due or payable out of or for or by
Motion deMed, with costs.