Hart v. City Theatres Co.

• Decision Date: 15 June 1915
• Citation: 215 N.Y. 322,109 N.E. 497
• Parties: HART, v. CITY THEATRES CO.
• Court: New York Court of Appeals Court of Appeals

215 N.Y. 322

109 N.E. 497

HART,

v.CITY THEATRES CO.

Court of Appeals of New York.

June 15, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Edward Hart against the City Theatres Company. From a judgment of the Appellate Division (156 App.Div. 673, 141 N.Y.Supp. 386) reversing by divided court a judgment dismissing the complaint on the merits, defendant appeals. Judgment of Appellate Division reversed, and that of Trial Term affirmed.

Charles L. Hoffman, of New York City, for appellant.

Walter J. Rosenstein, of New York City, for respondent.

WERNER, J.

The plaintiff is the lessee of premises on East Fourteenth street, in the borough of Manhattan, city of New York, and the defendant is the owner of a theater building adjoining plaintiff's premises. On January 6, 1910, the parties entered into an agreement in the form of a lease, by the terms of which the plaintiff, for a stipulated rental, gave to the defendant the right to construct a doorway through the rear wall at the third story of the plaintiff's building. This opening was designed to connect the gallery of the defendant's theater with the hall and stairways of the plaintiff's building for the purpose of securing to the defendant an exit into Fourteenth street from its theater. After the contract had been entered into the defendant submitted plans to the building department of the city of New York for the work required to be done, which were disapproved by the authorities as being in violation of law. No efforts appear to have been thereafter made by the defendant to complete the contract on its part. The plaintiff brought his action to recover the sums which at that time had accrued under the stipulations of the contract.

After both parties had introduced their evidence the trial court dismissed the complaint on the merits, on the ground that the contract, fairly construed, was incapable of performance without violating the Building Code, and that it was, therefore, illegal and unenforceable. The plaintiff appeal to the Appellate Division, where a different view prevailed as to the interpretation of the agreement, and it was decided that performance of its terms did not necessarily involve a violation of any of the provisions of the Building Code. The judgment of the trial court was therefore reversed, and judgment directed in favor of the plaintiff. From that judgment the defendant has taken this appeal.

[1][2] It is well settled that a plaintiff cannot recover if he is compelled to predicate his cause of action upon an illegal contract. Miller v. Ammon, 145 U.S. 421, 426, 12 Sup.Ct. 884, 36 L.Ed. 759. The Building Code has all the force of a statute in the city of New York, and the plaintiff practically admits that, if the work required to be done by the defendant in fulfillment of the terms of the contract would violate the provisions of that Code, the contract is illegal, and will not be enforced by the courts.

[3] It is to be determined, therefore, whether the lease, under a fair and reasonable construction of its terms, in view of the surrounding circumstances disclosed by the evidence, contemplates such alterations of the plaintiff's building as would clearly constitute a violation of the provisions of the Building Code.

The structure of which the plaintiff is the lessee for a long term of years is five stories in height, and fronts on the southerly side of Fourteenth street. The defendant's theater adjoins it on the south and west. The main theater building or auditorium adjoins the plaintiff's building on the south, and the stage or rear end abuts on Thirteenth street. Extending northerly along the west side of the plaintiff's building is the foyer or entrance to the theater from Fourteenth street. The stairway and hall in the plaintiff's building, the use of which was leased to the defendant, is located on the west side of the plaintiff's building, separated from the entrance part of the theater by the westerly wall of plaintiff's building, and the purpose of the lease was to secure to the defendant a means of ingress and egress between its theater gallery and Fourteenth street. The theater building is of modern fireproof construction, while the plaintiff's building is over 30 years old, and not fireproof. At the time when this least was made the plaintiff's building was occupied by various tenants who were engaged in differing kinds of business in which inflammable materials were extensively used. These tenants used the stairway in question, and also another stairway on the east side of the building.

The lease recites at length the defendant's desire to cut an opening or doorway through the exterior westerly wall of plaintiff's building for the purpose “of obtaining the right and privilege of using the westerly stairway,” and it grants to the defendant the right “to cut through the westerly wall,” and to use the said stairway as a means of ingress and egress to the theater. It provides that this use is to be “in common with the party of the first part [the plaintiff] and the other tenants of said building,” and that the defendant, before commencing the work of cutting through the doorway, shall submit plans thereof to the plaintiff, and have them approved by the building department. The parties agreed that the defendant should submit for the approval of the plaintiff plans showing the manner of fireproofing the stairway, and that all...