11 N.Y.S. 589 | The Superior Court of the City of New York and Buffalo | 1890
Under this agreement, the defendants agreed to be responsible to the plaintiff for any increase of insurance over 1 per cent, per annum which might be imposed by the various insurance companies on the building, or on the stock and fixtures of any of the tenants in the building. There is no express provision that such increase for which the defendants were to be liable should be caused by the business or acts of the defendants. Nor is the liability confined to the amount that the plaintiff should have to pay either to the assurance companies or to the other tenants. The express agreement is that the defendants should pay to the plaintiff the increase of insurance over 1 per cent, per annum. Considering'the circumstances surrounding the execution of the lease, the intention of the parties is clear. Plaintiff had become liable to other tenants to pay the increased insurance in case other parts of the building should be leased for purposes that would raise the cost of insurance. The building, with the exception of that portion about to be leased to the defendants, was all occupied, the uses to which it was to be put ascertained, and the costs of insurance fixed, and the only use of the building that could affect this liability was the use to which defendants would put the part of the building leased by them; and it was clearly to meet such an emergency as has arisen, and to prevent any dispute as to the causes of the increase in the cost of insurance, that the absolute liability for such increased cost was imposed upon the defendants, and, having agreed to that liability, I can see no reason why they should not be held to their agreement.
Counsel for the defendants conceded that the amount that plaintiff claimed was correct, under the ruling of the court, unless the counter-claim was established. We agree with the court below that defendants failed to establish the counter-claim set up in the answer, except to the extent that it was allowed. The statement of the agent of the plaintiff as to the extent of the defendants’ liability under the clause in question was not in the nature of a warranty. The statement was made, when defendants hesitated about signing the lease, that the only chance defendants would run would be about whatever is over 1 per cent, on $40,000 of insurance. It is clear that this was a mere expression of opinion as to the amount of the insurance that would be affected by the business that defendant was about to carry on in the building. If defendants wished to limit the liability to the increased costs on $40,000 of insurance, that limitation should have been inserted in the lease. No request was made to have such a limitation inserted. This is not a case-of
We have examined the other question presented, but think there was no error committed that requires a reversal of the judgment. The judgment must therefore be affirmed, with costs.
