Opinion
March 12, 1943.
Auchincloss, Alley Duncan for defendant.
Samuel Isaacson for plaintiffs.
Defendant moves to vacate a demand for trial by jury served by plaintiffs.
The action is brought by a tenant and alleged subtenants of defendant for damage to personal property which they claim to have suffered as a result of a water leakage from the roof, gutters, rain leader and drainpipes into the premises demised to the plaintiff tenant, and occupied by it and the alleged subtenants; the leakage came from a part of the building not under the control of plaintiffs and allegedly controlled by defendant. Defendant contends that a provision in the lease by which it demised the premises to the plaintiff tenant bars the latter, and its subtenants, from demanding a trial of this action by a jury. Said provision reads as follows: "* * * The tenant waives all rights to trial by Jury in any summary proceeding hereafter instituted by the landlord against the tenant in respect to the demised premises and in any action hereafter brought to recover rent or `additional rent' becoming due hereunder and in any other proceeding or action involving the terms, covenants or conditions of this lease or the demised premises, and on any defense or counterclaim interposed by tenant in any of such proceedings or actions."
Any agreement that in the event of future litigation the constitutional right of trial by jury would be waived should be construed, if not strictly, at least precisely. I am of the opinion that the words, "action involving the terms, covenants or conditions of this lease or the demised premises," are not broad enough to comprehend the present action, which clearly does not involve the terms, covenants or conditions of the lease or any right, title or interest in the demised premises. This is a tort action for damage to personal property and does not grow out of any of the provisions of the lease, nor does it affect the lease or determine any interest thereunder.
The motion is denied.