16 N.Y.S. 670 | N.Y. Sup. Ct. | 1891
This is an appeal from a judgment entered upon the report of a referee. The action was brought to recover damages for the breach of covenants contained in two leases of certain brick-yard premises located in Haverstraw, in Rockland county. The first lease was dated on the 23d day of February, 1878, and was made by Caroline Louisa Garner Scott, wife of James Scott, and William Henry Garner, to the Haverstraw Clay & Brick Company, a domestic corporation organized under the laws of the state of Hew York, and demised brick-yards and premises particularly described for five years from the 1st day of April, 1878, for the annual rent of $1,200, payable quarterly. The defendant in that lease covenanted and agreed to use and occupy the premises for the purpose of the business of brick-making from clay and sand to be procured elsewhere than on the premises, and that it would not use any clay, sand, or other material for making brick procured from or on any part of the demised premises; and further, that it would, at its own proper cost and expense, maintain and keep up a proper and substantial brick-yard upon the whole of the demised premises; that it would keep and preserve all the buildings, sheds, docks, pits, and other improvements then on the premises, or which thereafter might be erected, enlarged, or altered, in good repair and condition, at its own cost and expense, and at the expiration of the term or other sooner determination of the lease leave the premises with all the docks, buildings, pits, improvements, and fixtures in good order and condition; the whole of which, at the determination of the lease from whatever cause, was to become the sole and absolute property of the parties of the first part, and at such time to be surrendered and yielded up to the parties of the first part, or their legal representatives, in good order and condition. The defendant further covenanted that it would not suffer or allow any bats from said yard or vessel, or any other material, to be thrown in the Hudson river near the bulk-heads or docks, so as in any way to obstruct or interfere with the navigation or free use thereof, which might be connected with or belong to the demised premises, so as to make the waters of the river in any degree more shallow or less deep. There was a further covenant that the defendant, on the determination of the lease, would leave the docks, yards, and grounds in good, smooth, regular surface and condi
Most of the allegations in the complaint respecting the damage and negligence and default of the defendant were put in issue. The action was tried before a referee, and he has found all the material facts in favor of the plaintiff substantially as they were alleged in the complaint, and found that there was due to the plaintiff from the defendant $15,327.43, which includes interest. The principal contention arose upon the trial and on the argument before us respecting the construction to be placed upon the leases, it being the contention of the plaintiff that the covenants in the lease on the part of the defendant to occupy and maintain at its own cost and expense a proper and substantial brick-yard upon the whole of the demised premises meant one yard covering the whole premises; that it also meant every appliance necessary to a fully-equipped brick-yard; and that it was the intention of the plaintiff to require the defendant to furnish and leave upon the premises a fully-equipped brick-yard; and that the covenant to maintain, keep, and repair required the defendant to construct, keep, maintain, and leave one brick-yard upon the premises; and further, that the extension agreement, called the “second lease,” required the defendant to put up, erect, and maintain on said premises a steam-engine for the manufacture of brick thereon, of sufficient horsepower and capacity for the purpose thereof, with suitable buildings and fixtures and all machinery required therefor, called for one engine of sufficient power to run a brick-yard covering the whole property. It was the contention of the plaintiff also that the covenant of the lease that all buildings, sheds, docks, pits, and other improvements on the premises at the commencement of the lease belongs to the lessor, or thereafter erected thereon, should be kept in good order and condition, and left on the premises, and become the property of the plaintiff. The referee took that view of the law, and tried and decided the cause upon that theory, and our conclusion is the same. It is to be noted that this covenant differs from the ordinary covenants in a lease to leave the demised premises in good order and condition at the end of the lease. It is an absolute, unqualified covenant and agreement to leave the premises, with the docks, buildings, pits, improvements, and fixtures, in good order and condition at the expiration of the term fixed in the lease. The property was to be preserved and handed over to the plaintiff in good order. The defendant, on this appeal, challenged also the measure of damages adopted by the referee; but it is to be borne in mind that the parties took pains to express in the writing that it was a part of the consideration of the lease that the defendant should keep the property from deterioration, and leave all the additions and improvements upon the same; and the second lease provided that the whole were to become the absolute property of the plaintiff. For a breach of this covenant the plaintiff was entitled to recover the damages sustained thereby, which must be considered the reasonable cost and expense of replacing everything which was to be left upon the premises by the defendant, and we find that the referee has been careful to keep within bounds in all his valuations, and we think his measure of damage was as favorable to the defendant as could be expected. Our conclusion is that the judgment should be affirmed, with costs. All concur.