Opinion
November 4, 1910.
Benjamin E. Messler, for the appellants.
Isaac H. Levy, for the respondents.
The defendants were lessees of the top loft of the plaintiffs' building. The lease contained the following provision, viz.: "If the premises hereby leased shall be injured by fire or otherwise but not rendered untenantable the same shall be repaired with all proper speed at the expense of the lessor; but if the damage shall be so extensive as to render the premises untenantable the rent shall be proportionately paid up to the time of such damage and shall from thenceforth cease until such time as the same shall be put in good repair; but in case of such destruction of the building by fire or otherwise as to render it necessary to rebuild the same, and upon the payment of the proportional rent up to the time of such destruction, then and from thenceforth this lease shall cease and come to an end." On the 16th of July, 1908, a fire occurred in said loft which nearly destroyed, but did not get below, it. The defendants remained in possession, using their offices for two or three weeks thereafter, and then removed therefrom, and later removed their machinery on account of the repairs that were being made. On the fifteenth of September the plaintiffs notified the defendants that the premises would be ready for occupancy on October 1, 1908, to which defendants replied, in effect claiming that by the terms of the lease it had terminated by reason of the fire rendering the premises untenantable. This suit is to recover the October rent, which was due October first.
We have considered the many reasons urged by the appellants for the reversal of the order appealed from, but deem it necessary to refer herein to but one. It is urged by the appellants, first, that the word "building" in the 11th clause of the lease, above quoted, means "demised premises," and hence that the lease was to terminate upon the destruction of the demised premises; and, second, that if the word "building" is to be read in its usual sense, the lease does not provide for the contingency which happened, i.e., the destruction of the demised premises, and that, therefore, the statute (Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 197; re-enacted by Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909 chap. 52], § 227) applies.
That section of the statute is as follows: "Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises and of the land so leased or occupied; and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender."
No doubt the statute applies unless the agreement expressly provides to the contrary. But the agreement provides for three contingencies: (1) Injury not rendering the premises untenantable; (2) damage (meaning, of course, injury) so extensive as to render the premises untenantable; (3) destruction of the building. We think that the word "building" is to be given its ordinary meaning. The lease plainly contemplated that, in case of the destruction of the building (and the consequent lapse of time necessary to rebuild) the tenant should not be required to wait until it could be rebuilt; and, indeed, that the landlord should not be obliged to rebuild a similar building, but that, upon the happening of that contingency, the lease should terminate. However, the second contingency is what happened. The demised premises were rendered untenantable. In such case the statute would apply if the lease had not expressly provided that "the rent * * * shall from thenceforth cease until such time as the same shall be put in good repair," which, of course, means that the rent should cease only until that time. Having provided by contract for the contingency that happened, the contract must govern.
The determination should be affirmed, with costs.
INGRAHAM, P.J., LAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Determination affirmed, with costs.