110 Misc. 270 | City of New York Municipal Court | 1920
The plaintiffs were the lessors and the defendant the lessee under written leases of certain office premises in the city of New York, the defendant personally engaging in said premises in the brokerage business.
By reason of war being declared between our government and the governments of Germany and Austria, congress enacted a law generally referred to as the Draft Law, for the purpose of raising military forces with which to prosecute the war, and during
The facts are not in dispute, and defendant defends upon his claim that the leases were canceled and his obligation thereunder abrogated by reason of the United States Draft Law and its operation upon him.
There have been no decided cases, so far as I can find, growing out of this war upon this point, and the observation is natural that apparently the creditors have recognized the general hardships to those drafted and have therefore not pressed such claims as these, but upon a review of the decisions we find that, running from the old English case of Taradme & Jane, reported in Alleyn, pages 26 and 27, down to the recent one of Adler v. Miles, decided by Judge Seabury and reported in 69 Miscellaneous Reports, 601, the general desire and rule seem to be as expressed in the latter case, that “ where the law creates a duty and a party without fault on his part is disabled from performing it, failure to perform is excused; but where a party by contract creates a duty upon himself he is bound to make good if he may, notwithstanding any inevitable accident; but the rule has no application where performance becomes impossible by a change in the law or by reason of action taken under governmental authority. ’ ’
Judgment for defendant.