11 N.Y.S. 657 | N.Y. Sup. Ct. | 1890
This cause was submitted on the pleadings, certain documentary evidence, a stipulation entered into between the parties as to some of the facts, and briefs of counsel. The suit is brought primarily for equitable relief, the prayer of the complaint being- that an indenture of lease of dock property in the city of Hew York, of which the defendant is the lessor and the plaintiff the lessee, “be reformed by striking out” one of the provisions thereof, on the ground of mutual mistake of the parties in executing the instrument with that provision inserted therein. A recovery of damages is also demanded for the breach of a covenant under which the plaintiff claims the city was bound to make repairs, at the beginning of the term, to the premises in question. The leading facts are not in dispute. It appears that on or about April 30, 1881, the commissioners of the department of docks of the
No proof has been offered to support the allegation of the complaint that •the provision sought to he expunged from the instrument, granting the renewed 'term, was inserted in that lease by mutual mistake, and there is nothing, 'therefore, before the court upon which it. can act to give the equitable relief ■demanded. Further, it is apparent that there was no mistake of either party ■■in the matter. The new lease was given in pursuance of a covenant in the ‘former one by which it was expressly stipulated that a renewed grant'should “contain like covenants as this present one, except the covenants of renewal, •and except that the rent or compensation shall be $11,000 per annum.” For five years and more the plaintiff knew that, if he acquired the additional term ■under his privilege to demand it, he must acquire it in accordance with the /provisions which bound the parties to the same stipulations, other than the excepted ones, contained in the first grant. The city’s obligation and his •own as to repairs and the limitation of his right to claim anything concerning the condition of the premises at ttie commencement of the second term were to be the same as at the beginning of the first term, and no other. There is •nothing to be reformed, therefore, in the lease now in force. It is just what
Omitting from consideration all that is alleged in the complaint tending only to the right to equitable relief, it appears that the corporation of the city of New York was the owner of the pier No. 40 East river, and of one-half off the adjoining bulk-head; that in April, 1881, by its duly-authorized agents the board of commissioners of docks, it leased that pier and the adjoining bulkhead to the plaintiff, and in that lease the covenants above recited were contained; that the plaintiff, personally or by his tenants, occupied the premises throughout the whole term of the lease; that he paid the rent and performed all the covenants of the lease on his part to be performed; that in particular he put, kept, and maintained the premises and every part thereof in good and sufficient repair and condition, and dredged the slips; that, before the renewal of the lease, the pier and bulk-head were old, and by May,1887, notwithstanding the repairs that the plaintiff had put upon them, were in such condition that substantial repairs, amounting to partial rebuilding, were necessary to. put them in a fit state for service during the term of the new lease, and that such repairs would cost $15,021.02; that both the lessor and lessee agreed that these repairs were necessary; that the plaintiff demanded of the defendant or of the dock commissioners, both before and after the renewed lease, that these repairs be made, and, the commissioners having refused or neglected to do so, the plaintiff made such repairs or rebuilding at his own expense; and that by reason of the failure of tile commissioners to make these repairs he has been damaged to the amount expended for them, for which he demands judgment. The answer, while admitting most of the material facts, claims that the obligation to make the repairs referred to was upon the plaintiff, but by a general denial it puts- in issue the allegation that the plaintiff, under the terms of the lease, made those repairs which he was bound to make during the first term. It may be, therefore, that the plaintiff’s default in making the repairs he agreed to make, under the conditions of his first lease, has necessitated to a greater or less extent the substantial repairs or partial rebuilding of the structure to put it in proper condition at the commencement of the new term.
It is contended by the city that no liability to make repairs rests upon it because of the provision of the lease quoted, which states that no claim shall be made or allowed that the property was not, at the commencement of the term, in a suitable condition for the uses and purposes of the lease. There is no necessary inconsistency between that provision and the lessor’s covenant as to repairs to be made by it. Taking them together, and applying to them the reasonable rule that construction will be given to avoid repugnancy where it is evident that each party intended to assume an obligation to the other, and the rights of neither will be invaded by such construction, and the court can see exactly what was contemplated, it would appear that both the lessor and lessee undertook something to be actively binding upon each with reference to repairs. The lessor agrees that, prior to the commencement of the term, or as soon thereafter as practicable, it will make repairs to put the property in suitable condition for service during the term; but this obligation is limited. The measure of the extent to which it undertook to make such repairs is the judgment of the dock commissioners as to what they consid. ed necessary. On the part of the lessee the agreement is that iio claim shall be made or allowed that the property is not, or was not at the commencement of the term, in a suitable condition for the uses and purposes of the lease. This is part of the same clause in which the lessor’s obligation referred to is assumed, and it evidently means that if the dock commissioners decide that repairs such as are spoken of are necessary, and are made according to their judgment, or if they determine that no such repairs are necessary, all claim, on the part of the lessee that the property is not, or was not at the beginning
Apart from the provisions just considered, it is further urged by the defendant that the plaintiff agreed to keep the premises in repair during the term, and that hence he was bound to make all repairs; but the plaintiff’s covenant in that regard relates to repairs, “exceptas hereinbefore agreed,” and that refers to.the repairs the lessor should make at the beginning of the term. All the lessee had to do was to make those repairs which would keep up the property in the condition in which he took it. If he took an old pier in condition to last during the term of the first lease, (and all the city was bound to do was' “to put such wharf property in a suitable condition for service during the aforesaid term,”) the lessee was not required, at the expiration of the term, to return to the lessor a structure in any better condition than when he got it, or one that would be suitable and in condition for future service during an additional term of five years, but he was bound to make all repairs to keep it in good condition for use until the day bis lease expired; and if he did that, and notwithstanding it became evident, and was admitted by the lessor, that by deterioration the property had fallen into such a state that at the commencement of the new term it was not suitable for service during five more years of a renewed term, the lessor’s obligation, under the terms of the new lease, as well as those of the original lease pursuant to which the renewed term was granted, committed the city to making such repairs. Whether the defendant was bound to make all the repairs for which the plaintiff expended $15,000 depends upon facts not now before the court. It is quite impossible to assess the damages. The defendant undoubtedly admits in the stipulation that$15,000 was necessary to put the property in suitable condition for service during the renewed term, but its answer denies that the plaintiff made all the repairs it was incumbent upon him to make during the first term, and it is important that all the facts should be presented, and that the court should know what was done by the lessee during the first term in making repairs, and whether any of the $15,000 was expended for repairs he was bound to make under his particular covenant relating thereto contained in the first lease.. I do not consider the stipulation as foreclosing the city from making this inquiry.
So far as equitable relief 'is demanded, none can be awarded; but the cause will be sent to the circuit for trial as a common-law action for breach of the covenant of the city to put, at the beginning of the second term, the property in suitable condition for use during that second, or renewed, term.