120 Misc. 592 | N.Y. App. Term. | 1923
The 2d day of November, 1916, the defendant entered into an agreement of lease in writing for premises in the city of New York for a period of five years commencing on the 1st day of May, 1917, and terminating on the 30th day of April, 1922. The written lease contains a provision “ that the said lessee hereby further covenants that it will pay and discharge all
The only question involved in the case is the proper construction of the clause of the lease quoted above which requires the tenant to pay all taxes, assessments and other charges “ imposed on said premises during the said term as soon as they become due and payable.” It is the contention of the plaintiff that the defendant promised to pay all taxes and assessments imposed during the term of the lease even though such taxes became due and payable only after the expiration of the term, while it is the defendant’s contention that it was required to pay all taxes during the term of the lease as soon as they became due and payable regardless of when the actual levy was made and that it was not required to pay any taxes imposed, levied or assessed during the term which became due and payable thereafter. The result of plaintiff’s construction of the lease would be that the tenant could not be required to pay any taxes during the first year of its occupation because all taxes becoming due during the first year were imposed, levied and assessed prior to the beginning of the term and not during the term, but would be required to pay taxes for a year after the expiration of the term; while the defendant’s construction would require the tenant to pay all taxes during the term of its occupation. It would seem that the construction placed upon the lease by the defendant would be more in accord with ordinary business practice; and in addition, the defendant has shown that it did pay at the request of the original lessor the taxes for the year 1917 which became due and payable in May and November of that year and also paid the taxes for the years 1918, 1919, 1920 and 1921.
In spite of the fact that under the lease the defendant was required to pay only, either (1) the taxes which were imposed, levied and assessed during the term regardless of when they became due and payable, or (2) the taxes which became due and payable during the term regardless of when they were levied or assessed, and in spite of the fact that it is undisputed that the defendant has at the request of the lessor paid the taxes in accordance with the second alternative, the trial judge has granted judgment in favor of the plaintiff which if sustained will compel the defendant to
The learned trial justice in reaching his conclusion that the tenant was required to pay after the expiration of his term taxes which had been imposed during that term, relied upon the authority of the case óf Wall v. Hess, 232 N. Y. 472, but in my opinion that case is clearly distinguishable. The court had before it for construction a lease which contained a clause whereby the tenant agreed to “ pay and discharge when due and payable or within sixty days thereafter, all and every tax and taxes, Croton water or other water rates, charges for placing, replacing or repairing water meters upon said premises, rents, charges, assessments, duties and other impositions whatsoever, as well ordinary as extraordinary, which shall be assessed, levied or imposed upon the said premises, or any part thereof, by any government, power or authority whatsoever during the said term,” and by a division of four judges to three the court held that the tenant was bound to pay after the expiration of his term all taxes which had been imposed during the term. It must be remembered that the courts always attempt to construe leases in accordance with the intention of the parties, and a construction
It cannot be disputed that the court must endeavor to construe the lease in accordance with the intent of the parties, and that if the words of the lease are capable of two constructions, the court must accept that construction which the parties themselves have placed upon it. The acts of the original parties to the lease lead to the plain inference that they intended that the tenant should pay during the said term all taxes imposed as soon as they became due and payable. It seems to me that when the judges of the highest court of this state show an almost even division as to the proper construction of a somewhat similar phrase in another lease, the mere fact that a majority of the court has held that in the particular lease then under consideration the parties intended by the words “ all and every tax * * * which shall he assessed, levied or imposed upon the said premises or any part thereof by any government, power 'or authority whatsoever during the said term ” to include all taxes which were thereafter so assessed,
For these reasons the judgment should be reversed, with costs to appellant, and the complaint dismissed, with costs.
Lydon and Burr, JJ., concur.
Judgment reversed.