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the monthly payment thereof, in the lease under consideration in the case at bar; and it would seem, therefore, that the enforcement of any right of action against the lessee for such deficiency as there might be upon the reletting of the premises by the landlord under the defeasance clause would have to be postponed until the amount of such deficiency was ascertained at the end of the term fixed by the lease. But however this may be, the judgment, which is only for the July rent, and not for any deficiency, is right, and should be affirmed.
Judgment of the Municipal Court affirmed, with costs. All concur.
DUCKER v. DEL GENOVESE.
(Supreme Court, Appellate Division, Second Department. April 29, 1904.) 1. LANDLORD AND TENANT-LEASE-IMPLIED WARRANTY-CONDITION OF PREM
There is no implied warranty that premises are fit for the purpose for
which they are leased. 2. SAME-CONSTRUCTION OF LEASE-REPAIRS—DESTRUCTION OF BUILDING-RE
A lease of factory buildings provided that the lessee would make all repairs of whatever description, and in every respect maintain the property so that there would be no expense whatsoever to the lessor other than the regular city tax, etc.; and that at the expiration of the term the lessee would surrender the premises in as good condition as reasonable use and wear thereof would permit, damages by the elements excepted. Held, that the lessee was not obligated to rebuild the buildings after their col
lapse through no fault of his. Appeal from Special Term.
Action by Maria E. Ducker against Alfredo Del Genovese. From a judgment sustaining a demurrer to the complaint, complainant appeals. Affirmed.
Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.
Nathan Ottinger (John Frankenheimer, on the brief), for appellant. William H. Cochran, for respondent.
WOODWARD, J. The complaint attempts to set forth two causes of action-one for rent, and the other for damages alleged to have been sustained by reason of the collapse and total destruction of the building upon the premises, which she had leased to the defendant. The defendant demurs to the second cause of action on the ground that it does not state facts sufficient to constitute a cause of action, in that it fails to allege that the building collapsed through any fault of the defendant. The demurrer was sustained at Special Term, and appeal comes to this court, the question of law being the proper construction of the lease under which the defendant occupied the premises.
The lease is for a period of 10 years, and covers the factory property known as 42 and 44 Fulton street and No. 37 Doughty street, borough of Brooklyn, and the plaintiff contends that the defendant and 121 New York State Reporter undertook absolutely to redeliver the premises in their original condition at the end of the term, under clauses of the lease reading as follows:
1 1. See Landlord and Tenant, vol. 32, Cent. Dig. & 442.
"And the said party of the second part dotb covenant to pay unto the said party of the first part the said yearly rent as herein specified. And make all repairs of whatever kind or description to said property, keep roof and all outside in order, and in every respect maintain said property so that there will be no expense whatsoever to party of the first part other than the regular city tax (except water tax) and the insurance.
And that at the ex. piration of the said term the said party of the second part will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted."
It is conceded that some time after the defendant entered into possession of these premises the buildings collapsed and fell in, so that under the orders of the local authorities the same were completely demolished; and the theory of the plaintiff is that she is entitled to recover the value of these buildings, because the defendant, under his covenant to repair and maintain said property, has failed to restore them. There is no allegation in the complaint of any negligence on the part of the defendant producing the collapse. There is nothing to suggest that the collapse was due to any failure on the part of the defendant to repair any defects which were discoverable upon a reasonable inspection of the premises, and the action rests wholly upon the proposition that the defendant, in covenanting to make repairs and to maintain the premises, took upon himself the duty of restoring the buildings which collapsed through no fault of his own, but, as we may assume, through structural defects which were unknown to the parties either at the time of entering into the contract or prior to the falling of the buildings. We are clearly of opinion that the covenants of the lease do not impose the burden which the plaintiff undertakes to assert; that a covenant to repair and maintain buildings is not a covenant to reconstruct buildings destroyed through no fault of the tenant, unless the language is such as to absolutely compel this conclusion. Where a doubt exists as to the meaning of words, resort may be had to the surrounding facts and circumstances to determine the meaning intended. If the language of a promise may be understood in more senses than one, it is to be interpreted in the sense in which the promisor had reason to believe it was understood. Gillet v. Bank of America, 160 N. Y. 549, 555, 55 N. E. 292, and authorities there cited. If we place ourselves in the position of this defendant, about to rent these two factory buildings, we may assume safely that he contemplated that he was securing buildings which were reasonably adapted to the uses for which he was hiring them, and, while it is true that, in the absence of some provision in the contract, there is no implied warranty that the premises are fit for such purposes, the language of the contract is to be construed as contemplating buildings which, under ordinary circumstances, would continue in existence during the demised term. The plaintiff proposed to him, by the language of the contract, not that he should insure the continued existence of such buildings, but that he should “make all repairs of whatever kind or description to said property, keep roof and all outside in order, and in every respect maintain said property"; not in the sense of insuring its continued existence, but "so that there will be no expense whatsoever to party of the first part other than the regular city tax," etc. That is, assuming that the buildings would remain, the defendant covenanted to make all repairs, both inside and outside, including the roof, and to “maintain said property so that there will be no expense whatsoever to party of the first part,” which involved painting and whatever was necessary to keep the buildings in a state of preservation. This is what the language fairly imports. It is what the defendant, reading over the language of the covenant, had a right to understand was intended by the plaintiff. The effort to place upon this covenant a construction which made the defendant an absolute insurer of the buildings is without warrant under any rule of construction which has been called to our attention, or with which we have any acquaintance. The covenant relates to repairs and maintenance of the buildings in existence, not to the reconstruction of the buildings which might be destroyed by the elements; and, the covenant specifying the nature of the repairs which were contemplated, we are of opinion that it comes within the well-settled principle of construction that, where words of general description are associated with words of particular description, the general words, in the absence of anything clearly manifesting a contrary intent, shall be limited so as to be ejusdem generis with the particular words. Belden v. Burke, 72 Hun, 51, 83, 25 N. Y. Supp. 601; Given v. Hilton, 95 U. S. 591, 598, 24 L. Ed. 458; Matter of Reynolds, 124 N. Y. 388, 397, 26 N. E. 954; Morton v. Woodbury, 153 N. Y. 243, 253, 47 N. E. 283; Johnson v. Goss, 128 Mass. 433, 434. The language of this covenant dealt with details. It specified particular repairs which were to be made, and thus limited the construction to be put upon the broad language used in that connection. This is the fair and reasonable view of the contract between the parties, and the courts will not attempt to enlarge the scope of the agreement where the obvious result must be an injustice. If the buildings fell without fault on the part of the defendant, it could not be the duty of the latter to rebuild them, under the language which the plaintiff has used in her contract with him, and the interlocutory judgment sustaining the demurrer is supported by reason and authority.
The interlocutory judgment appealed from should be affirmed, with costs. All concur.
SIRE V. SHUBERT et al.
(Supreme Court, Appellate Division, First Department. April 22, 1904.) 1. Costs—INTERLOCUTOBY ORDERS-STAY OF PROCEEDINGS-SERVICE OF ORDER
Under Code Civ. Proc. § 779, providing that where costs of motion directed by order to be paid are not paid within the time fixed by the order, or, if no time is fixed within 10 days after service of the order, all proceedings on the part of the person directed to make payment, except to review or vacate the order, are stayed, without further direction of court, such nonpayment of costs, whether the time of payment is fixed by order or not, does not stay proceedings until service of a copy of the order on the party's attorney; and, when not so served, the party has a right to serve notice of trial, and place the cause on the calendar, and, when so placed, it cannot be stricken by the court.
and 121 New York State Reporter Appeal from Special Term, New York County.
Action by Henry B. Sire against Samuel S. Shubert and others. From an order striking the cause from the Special Term calendar, plaintiff appeals. Reversed.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
Josiah Canter, for appellant.
McLAUGHLIN, J. Plaintiff obtained an injunction pending the return of an order to show cause why the same should not be continued during the pendency of the action. On the return of the order the motion to continue was denied, and the injunction vacated, with $30 costs, and the plaintiff appealed. Intermediate the order vacating the injunction and the hearing of the appeal, the plaintiff served a notice of trial for the December term, 1903, which was returned by the defendants' attorney on the ground that the costs referred to had not been paid. The plaintiff then put the cause upon the Special Term calendar for trial, and the defendants thereupon moved to strike the same there from on the ground that it was improperly placed thereon. The motion was granted, and it is from this order that the present appeal is taken.
The fact is uncontradicted that, at the time the plaintiff served the notice of trial and placed the cause upon the Special Term calendar, the costs referred to had not been paid, and the plaintiff, by reason thereof, was stayed from proceeding in the action, except to review the order vacating the injunction, if the defendants had taken such proceedings as brought him within the section of the Code of Civil Procedure relating to the payment of the costs of a motion. The payment of such costs is regulated by section 779, which provides that where the costs of a motion directed by an order to be paid are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within 10 days after the service of a copy of the order, an execution against the personal property of the party required to pay the same may be issued, and all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed, without further direction of the court, until the payment thereof is made. Here it does not appear that any time was specified in the order within which the costs were to be paid, nor does it appear that, at the time the plaintiff placed the cause upon the calendar, the defendants had served a copy of the order awarding costs. The nonpayment of the costs, whether the time of payment was specified in the order or not, did not operate as a stay until after a copy of the order had been served upon plaintiff's attorney. The plaintiff had no notice of the order, and, of course, could not be put in default until such notice was given by the service of a copy of it. If this be the correct con-. struction of this section, then the plaintiff had a right, so far as appears, to serve his notice of trial and place the cause upon the calendar when he did. Having this right, the court erred in granting defendants' notion to strike the cause from the calendar.
It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. concur.
SMITH V. DONNELLY. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) 1. LANDLORD AND TENANT DEFECTIVE PREMISES—TENANT'S PERSONAL IN
JURY-LIABILITY OF LANDLORD.
A landlord is not liable for the personal injury of his tenant because he failed to give the tenant notice of the latent structural defect occasioning it, where the landlord had no actual knowledge thereof, and the defect was not apparent on reasonable inspection.
Hooker, J., dissenting. Appeal from Trial Term.
Action by Tillie Smith, an infant, by Robert Smith, her guardian ad litem, against Eugene J. Donnelly. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial on the minutes, he appeals. Reversed.
Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.
William J. Carr, for appellant.
WOODWARD, J. The plaintiff, an infant, was injured by falling from a third-story window of a tenement house owned by the defendant, and brings this action to recover damages for such injuries; alleging negligence on the part of the defendant, in that there was a defect in the construction of the window frame, which permitted the window to fall out, carrying the plaintiff with it to the ground. The plaintiff's theory of the case, accepted by the jury, was that the plaintiff was engaged in washing windows; that she approached the window where the accident occurred, put up the lower sash, and reached up and pulled down the upper sash; that, as this upper sash came down, it flew out, because of the absence of a stile or stop, and the plaintiff, clinging to the sash, was drawn over the window sill, about 27/2 feet high, and precipitated on the ground below, to her great injury. From the judgment entered upon the verdict of the jury, appeal comes to this court.
While the learned trial justice may have devoted more consideration to the plaintiff's case than was warranted, we think there was no error in granting the amendment to the complaint, without which the plaintiff would have had no standing in court. The amendment consisted of inserting "an allegation material to the case," without materially changing the cause of action alleged, and this is specially authorized by section 723 of the Code of Civil Procedure.
We are of opinion that the evidence supports the conclusion reached by the jury, and the judgment might be permitted to stand, were it not for an error in the charge of the learned trial justice, to which the defendant duly excepted. The court charged that it“Is the duty of the owner of property seeking to lease it to some one else, if there is any dangerous, hidden defect-a defect that is not apparent or is not