126 N.Y.S. 128 | N.Y. App. Div. | 1910
The action is brought by plaintiff as remainderman against the defendant Adams, a life tenant, for permissive waste. Suckno, a tenant for years, is joined as defendant. Prior to his death one William Sawyer, the father both of the plaintiff and the defendant Adams, was the owner and in possession of two store buildings upon South Pearl street in the city of Albany. In these store buildings were stores upon the first floor and apartments above. Prior to the death of said Sawyer, through the plaintiff as his attorney in fact, a lease was made to the defendant Suckno for five years, with the privilege of renewal. After the death of Sawyer fire broke out in the store 156 South Pearl street and practically gutted the store. The defendant Adams had had the property insured and the insurance companies are willing to pay the insurance, which was adjusted at about $1,400. In the lease between Sawyer and Suckno there was no agreement on the part of Sawyer to make any repairs. There seems to have been some negotiation between the plaintiff, defendant Adams and the defendant Suckno as to the restoration of the building by the use of the insurance moneys. While an agreement to. that effect was signed by all the parties, it is claimed by the
Without a covenant on the part of the landlord, in the lease, to repair, it would seem to be settled law that the landlord is not bound to repair, even in case of injury through fire. By section 227 of the Beal Property Law (Consol. Laws, chap. 50; Laws of 1909, chap. 52) the lessee has the option to surrender the premises or to make the repairs himself. (See, also, Doupe v. Genin, 45 N. Y. 119; Smith v. Kerr, 108 id. 31.) The direction to the receiver, therefore, to repair the building with insurance money seems to have been unauthorized. It was optional with the life tenant whether or not she should make the repairs, and if the lease was made at an unprofitable rental she might lawfully exercise that option to compel the lessee either to surrender the premises or to retain them, making such repairs as he might desire to make.
As to the other repairs, aside from the restoration of the building from the effects of the fire, those repairs do not seem to be of such a nature as alone to justify the appointment of a receiver. There is a dispute as to the condition in which the premises were found at the time they were handed over to the life tenant. Assuming that the life tenant is bound to make such repairs as would prevent the building from deteriorating, there is no reason why this could not be accomplished in the case at bar by means of
Other questions are raised by the answer of defendant Adams, which are not necessary here to discuss. This appeal involves simply the exercise of the discretionary power of the court to take the property out of the hands of its owner and put it in the hands of a receiver for the purpose of making certain repairs. It can hardly be that the learned judge at Special Term would have appointed a receiver unless in his view of the case the building should have been restored to the condition in which it existed before the fire. We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion for the receiver denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion for a receiver denied, with ten dollars costs.