194 A.D. 456 | N.Y. App. Div. | 1920
This action is brought to recover unpaid rent, taxes and water rates under an express covenant contained in a lease. The trial court directed a verdict in favor of the plaintiff for the sum of $2,608.06, but on motion to set aside the verdict the court reduced the recovery by $1,472.53, the amount of the taxes for the year 1917, and interest thereon. Upon the failure of plaintiff to stipulate to so reduce the verdict, the verdict was set aside and a new trial ordered. The question to be determined is the liability of the defendant to pay such taxes, the material facts being admitted.
The term of the lease here involved ran from September 1,
“First. That the said party of the second part shall and will 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, except that the parties of the first part covenant and agree to pay all taxes, assessments or other charges which may become a hen and charge on said premises in the year 1901; but the party of the second part covenants and agrees to pay the water rates or rents chargeable against or to said premises or' any part thereof after September 1st, 1901.”
Under the amended city charter which took effect January 1, 1912, all assessments are made prior to March first, the taxes are "levied or imposed in March, and one-half thereof become due and payable on May first and the other half on November first each year. It is admitted that the taxes for the year 1917 were assessed, levied and imposed on the demised premises during the month of March. Such taxes did not, however, become a lien and charge until May first, one day after the lease expired. The lessee here contends that no burden rests upon him to pay any taxes which were not a lien on the premises when his term expired, and that he has fully performed his covenant by surrendering the premises free from tax hens.
Were it not for the decision of the Court of Appeals in Ward v. Union Trust Company (224 N. Y. 73), relied on by the trial court, it is doubtful if any question would have been raised respecting the meaning of the seemingly clear language used in the lease here under consideration. The lessee has expressly covenanted to “ pay and discharge when due and payable or within sixty days thereafter, all and every tax and taxes * * * which shall be assessed, levied or imposed * * * during the said term.” It is difficult to see how the obligation to pay ah taxes assessed during the term could be more clearly expressed. Had the parties intended that such
The precise question here involved was before this court in Ogden v. Getty (100 App. Div. 430), and was resolved in favor of the landlord. Ogden v. Getty has never been overruled, and the lease there considered and the one in this case
As the term expired at noon on May first, one-half of the annual taxes for the year 1914 had not only been assessed but were a lien on the demised premises when the lease expired. The court held that the lessee must pay such taxes on the ground stated in the opinion that “ it is to be assumed that the parties thereto intended that the landlords would deliver the possession of the property to the tenant free from all general taxes that were due and unpaid, and that the tenant pursuant to its covenant would return them to the landlords at the end of the term free from general taxes then due and unpaid.” The court arrived at such assumption or conclusion on account of the language used in the covenant which bound the tenant to pay “ all annual taxes ” and to keep the “ premises free, clear, discharged and unincumbered from all such taxes * * * during said term.” The court, by such assumption, having thus eliminated the question of the tenant’s liability to pay the taxes which became a lien on the first Monday in October, said: “It becomes a question, therefore, whether the lessors or lessee must bear the burden of the general taxes which became a lien upon the demised premises at or prior to the expiration of the lease,” and then held that the amendment of the city charter which took place during the term did not
In the case at bar, however, it cannot be “ assumed ” that the lessee covenanted to pay only such taxes as became a lien during the term. He expressly covenanted otherwise, and in plain and concise words agreed to pay all taxes which should be “ assessed, levied or imposed ” during the term. The intention of the parties having thus been so clearly expressed, the lease here under consideration differs materially from the Ward lease.
The judgment and order appealed from should be reversed, with costs, and the verdict of the jury as originally directed by the court reinstated, with costs to the appellant.
Clarke, P. J., and Page, JJ., concur; Laughlin and Dowling, JJ., dissent.
Order reversed, with costs, motion denied, verdict reinstated and judgment directed to be entered thereon, with costs.