120 N.Y.S. 1000 | N.Y. App. Div. | 1910
The order and judgment should be reversed and a new trial granted, with costs to the appellanf'to abide event..
The action was upon a written lease to recover damages for a breach thereof. The case was called for trial, a jury impaneled and the plaintiff opened. Thereupon the motion to dismiss the complaint was made. After some discussion by counsel, the plaintiff asked leave to amend the complaint, which was granted, and. thereafter the order appealed from was made. Some evidence was offered by plaintiff, but that was immaterial here, as all the allegations of the complaint as amended were deemed to be true, for the pnrppse of the motion to' dismiss and the order made thereon. The lease was not set out in or
The yearly rental was not stated in the complaint. The term expired August 5, 1907. ' This action was commenced in April, 1908. There were two covenants in the lease which were alleged to have been broken, the One to make necessary repairs, and the other to surrender the premises, at the expiration of the term, in a proper condition.
I do not see how the dismissal of the complaint can he sustained, as to the alleged breach of the last covenant. The allegation was that the dhmaged, defective condition in which the property was surrendered was not due to the exceptions contained in the covenant, to wit, the reasonable use, of wear, or damage by the elements, but to the defendant’s fault and breach of the covenant. If plaintiff proved these allegations I see no reason why a recovery could hot be had for dam.ages_forJ)reach of this covenant. fThe main contention, however, is with reference to the Other covenant to make
The latter case seems to be the one relied upon by the defendant and the trial court in the disposition of this case. The lease' there involved contained the clause that “ the yearly rent [was] $1,000, payable quarterly, and the ordinary taxes and water rates and [repairs necessary,- with all alterations, if any needed] ” or “ [all repairs or alterations necessary],” and then there' was. the usual
The judgment was reversed apparently because of the error above referred to. In the course of the opinion the court said: “ Although the tenant may agree to expend money on the landlord’s premises beyond what is needed for his own purposes, yet this is an agreement which he is.not likely to make. And it should be' unequivocally expressed. The ordinary rule, of course, is that the tenant takes the property just as it is, and pays his rent-for the use of t in that condition. (Taylor Land. &Ten. § 358.
We do not deem it necessary to analyze the other cases above cited. We refer to the reports of the cases for a full statement with reference thereto. We are unwilling to place oiir decision upon the original complaint alone. It was quite essential that the covenant brought into the pleading by the amendment should be considered with the one alleged in the original complaint.
The complaint as amended did contain facts sufficient to constitute a cause of action, and, therefore, the trial should have been permitted to proceed. (See Abbott v. Easton, 195 N. Y. 372, 376 and cases therein referred to.)
All concurred.
Judgment reversed and new trial ordered, with costs to'appellant to abide event.
See 9th ed.— [Rep.