177 A.D. 403 | N.Y. App. Div. | 1917
The question involved in this appeal is the right of the plaintiff, as landlord, to recover from the defendant, as tenant, one month’s rent, amounting to $200, of the premises No. 354 Bowery in the" borough of Manhattan, city of New York, for the month of February, 1916. The defendant resisted payment upon the ground that he was evicted before the day the rent would have become due under the lease.
The defendant originally leased the premises in question from Charles Schlang on April 11, 1911, who thereafter sold
On April 1 and August 15, 1915, the fire commissioner of the city of New York issued three certain orders to the plaintiff herein, as owner, requiring him to do certain work on said premises, consisting of providing an iron stairway; providing a counter-balanced stairway; repairing fire escapes; painting fire escapes; providing a return rail, top and bottom, on a fire escape; providing metal or kalameined frames and sashes with wire glass for the windows opening on fire escapes; providing an inclosure of fire-retarding material around a stairway from the cellar to the roof; installing telegraphic communication with the fire department; and installing an interior electric fire alarm system. These orders not having been complied with, the fire commissioner, acting under sections 775 and 778 of the Greater New York charter (Laws of 1901, chap. 466, added by Laws of 1911, chap. 899, as amd. by Laws of 1914, chap. 459),
°The plaintiff claims that the tenant was bound to do the work necessary to comply with these orders pursuant to the provisions of the lease heretofore quoted. The defendant insists, first, that he was not responsible to make changes in the premises made necessary by a change of public policy; and, second, that his obligation to keep the building in repair did not include the making of structural changes not contemplated by the parties when the lease was made.
For the first proposition the defendant relies upon the case of Herald Square Realty Co. v. Saks & Co. (215 N. Y. 421), wherein the court said: “ The language of this lease, construed in the light of contemporaneous regulations, usages and customs, seems to require the conclusion that it was not the purpose of the parties to subject the tenant to an expense caused wholly by extraordinary and unforeseen building alterations made necessary by a subsequent and radical change in the policy of the municipal government, and we are brought to this conclusion despite the forceful argument of counsel for the plaintiff in which he contends that the expense of complying with the order of the borough president, directing the removal of the show windows, comes within the very letter of the lease. We think that this extraordinary expense was not in the contemplation of the parties when this lease was made.” But in that case the department of buildings had originally approved the plans for the erection of show windows on the premises there in question, projecting beyond the building lines of Thirty-fourth street and Broadway and a building had been erected in accordance with
But it seems to me that the orders of the fire commissioner called for more than merely repairs or for the supplying of such apparatus, equipment or implements as might be necessary to render safe the conduct of the defendant’s business in the demised premises. As the landlord refused to comply with any of these orders and sought to throw the entire responsibility therefor upon the defendant, and as the latter, in consequence of the landlord’s refusal to comply with the orders, was evicted from the premises in question, the tenant cannot be held liable under the lease unless all the work called upon to be done under the orders of the fire commissioner was properly chargeable to the tenant; for if any part of the work should have been done
We believe, therefore, that the owner, having failed to comply with so much of the orders in question as involved structural changes in the demised premises, and which it was incumbent upon him to do, as the burden thereof never passed to the tenant, and as the eviction of the tenant was due to the landlord’s failure to comply with the orders in so far as he was bound so to do, as well as to the tenant’s failure to comply with so much thereof as was properly assignable to him, and as the refusal of the owner to do his share of the work ordered was in part at least the cause of the defendant’s eviction, the landlord cannot recover any rent for the period after the eviction occurred.
The determination of the Appellate Term and the judgment of the Municipal Court will, therefore, be reversed, with costs and disbursements in this court and at the Appellate Term, and judgment directed in favor of the defendant dismissing the complaint herein, with costs.
Scott, Laughlin, Smith and Davis, JJ., concurred.
Determination and judgment reversed, with costs in this court and at the Appellate Term, and judgment ordered dismissing complaint, with costs.
Since amd. by Laws of 1916, chap. 503.— [Rep.