Opinion
February 21, 1919.
I. Maurice Wormser of counsel [ Goodman Block with him on the brief; Milton Mayer, attorney], for the appellant.
Henry H. Silver, for the respondent.
The defense was that the landlord had violated the terms of the lease, which not only disentitled it to relief but for which violation the defendant had sustained and was entitled to recover damages by way of counterclaim. The alleged violation was the failure of the landlord to furnish the tenant after five-thirty P.M. with live steam for use in the business of the tenant to which the tenant was entitled, as he claims, under the provisions of the lease. The lease contained the following provisions governing the obligation of the landlord to furnish the tenant with live steam and with belt power:
"And the Landlord agrees to furnish the Tenant with live steam through a three-quarter (3/4) inch pipe, at a pressure of sixty (60) pounds, with two outlets, for use in the business of the Tenant, it being understood and agreed that such live steam shall be furnished on week days (legal holidays excepted) from 7:30 A.M. to 5:30 P.M. except on Saturdays, when such live steam shall be furnished from 7:30 A.M. to 4:30 P.M., and except that on Saturdays during the months of June, July and August, such live steam shall be furnished until 1 P.M. only, it being agreed that any reasonable time necessary for making repairs to the steam plant shall be allowed the Landlord without any claim being made therefor by the Tenant for damages or abatement of rent.
"And the Landlord further agrees to furnish belt power from a five-inch belt from the main shafting to operate on the fifth loft three extractors and four washing machines, and, on the fourth loft, seven drums, such power to be furnished on week days (legal holidays excepted) from 7:30 A.M. to 5:30 P.M., except on Saturdays when such power shall be furnished from 7:30 A.M. to 4:30 P.M., and except that on Saturdays during the months of June, July and August such power shall be furnished until 1 P.M. only. It is agreed, however, that if the Tenant shall demand power after the time hereinbefore specified, the Landlord will furnish the same, but in no event shall such power be furnished later than 7:30 P.M. and the Tenant agrees to pay for such additional power at the rate of $2.50 per hour."
It is contended by the tenant that the last sentence in the paragraph relating to belt power required the landlord to furnish live steam after five-thirty P.M. upon the same terms provided for the furnishing of belt power. In support of this contention, the tenant claims that the two clauses should be read together and that the last sentence should be deemed to apply to both live steam and belt power. I can see no justification for this contention. There is an obvious and well-understood difference between live steam and belt power. Live steam was employed to heat water in vats; belt power was required for running machinery. As the hours of service provided for in both cases are the same, there is no conceivable reason for their careful separation into two distinct paragraphs of the agreement unless it were intended to make, as the lease does, a different requirement in regard to furnishing belt power than in regard to furnishing live steam. In no part of the lease are the terms used interchangeably, and in each of these two paragraphs quoted there is a careful, and obviously an intentional, differentiation between live steam and belt power. The court has no authority to write into the lease an agreement to furnish live steam after hours simply because the lease contains an agreement to furnish belt power after hours.
The trial court received evidence concerning the nature and requirements of the tenant's business, and evidence to show that on numerous occasions the landlord had furnished not only belt power but live steam on demand, and in cases where both had been furnished merely charged two dollars and fifty cents an hour for both. It was contended that this afforded a practical construction of the lease binding upon the parties. The nature and requirements of the tenant's business could have no bearing, when the lease specifically provided for the furnishing of both live steam and belt power and fixed the hours for the service. Evidence of practical construction, which was objected to, was inadmissible because there is no ambiguity or indefiniteness about the contract.
The determination should be reversed and a final order entered in favor of the landlord, with costs in all the courts.
CLARKE, P.J., LAUGHLIN, PAGE and MERRELL, JJ., concurred.
Determination reversed, with costs in this court and in the Appellate Term, and final order directed to be entered in favor of the landlord, with costs.