Manufacturers Trust Co. v. Bach

• Citation: 32 Misc.2d 858,223 N.Y.S.2d 86
• Decision Date: 01 September 1961
• Docket Number: O-R
• Parties: MANUFACTURERS TRUST COMPANY, Co-Trustee with Helen V. Shields under the 5th Paragraph of the Last Will and Testament of Anna V. Shields, Landlord, v. Buddy BACH, Sam Solomon and Nat Feldman, Tenants, Yel-ipe Banana Co., Inc., Undertenant.
• Court: New York City Municipal Court

Page 86

223 N.Y.S.2d 86

32 Misc.2d 858

MANUFACTURERS TRUST COMPANY, Co-Trustee with Helen V.

Shields under the 5th Paragraph of the Last Will and Testament of Anna V. Shields, Landlord, v. Buddy BACH, Sam Solomon and Nat Feldman, Tenants, Yel-O-Ripe

Banana Co., Inc., Undertenant.

Municipal Court of City of New York, Borough of Bronx,

Second District.

Sept. 1, 1961.

Simpson, Thacher & Bartlett, New York City, for landlord.

Joseph Goldberg, New York City, for tenant Feldman.

Philip Strauss, New York City, for tenants Bach & Solomon.

ARTHUR WACHTEL, Justice.

This is a non-payment proceeding for rent for the months of May and June, 1961 in respect of a retail butcher store premises operated by the tenants herein, Buddy Bach and Sam Solomon, the assignees of a lease entered into between the landlord and the tenant Nat Feldman, commencing July 1, 1959 and terminating June 30, 1964. The lease provided for the use of the demised premises for 'meat, poultry, fruit and vegetable market.' It specifically included the privilege of placing two stands fronting the store on Bathgate Avenue and two other stands fronting on 172nd Street. In accordance with the provisions of the lease, the tenants Bach and Solomon had the privilege and exercised the privilege of subletting a stand fronting the store to the undertenant, Yel-O-Ripe Banana Company, Inc.

A fire occurred in the demised premises on January 28, 1961. The landlord promptly thereafter caused repairs to be made. It was required to, and did, submit claims to its insurance company and to effectuate the adjustment thereof. Finally, on May 2, 1961, the landlord's agent, Nehring Brothers, notified the tenants Bach and Solomon that the store 'has been completely repaired and is now available for your use.' (Bach and Solomon Tenants Ex. A In Evidence.)

The tenants, Bach and Solomon, allege in their amended answer, as a defense to this case, that 'by virtue of a total demolition of premises caused by fire not of the tenants' making, said premises have been, since January 28, 1961, untenantable and continue to be untenantable.' And for a further defense they allege 'under the provisions of Section 227 of the Real Property Law of the State New York, the premises were so damaged or injured by the elements as to permit the tenant to surrender the premises and discharge the tenants from all liability under the lease.' The landlord contends that the premises were only partially damaged by the fire. Thus, an issue of fact is raised as to whether the premises were totally damaged or rendered wholly untenantable or whether they were only partially damaged, within the meaning of the lease.

The Fire Clause of the lease (paragraph 9, Landlord's Ex. 1 In Evidence) provides as follows: 'If the demised premises shall be partially damaged by fire * * * without the fault or neglect of tenant * * * the damages shall be repaired by and at the expense of Landlord and the rent until such repairs shall be made shall be apportioned according to the part of the demised premises which is usable by Tenant * * *. If the demised premises are totally damaged or are rendered wholly untenantable by fire * * * and if Landlord shall decide not to restore or not to rebuild the same, or if the building shall be so damaged that Landlord shall decide to demolish it or to rebuild it, then or in any of such events Landlord may, within ninety (90) days after such fire or other cause, give tenant a notice in writing of such decision, * * * and thereupon the term of this lease shall expire by lapse of time upon the third day after such notice is given, and Tenant shall vacate the demised premises and surrender the same to Landlord.'

The law is well settled that if the Fire Clause of a lease applies, it constitutes an express agreement to the contrary which excludes the operation of Section 227 of the Real Property Law (Butler v. Kidder, 87 N.Y. 98, and see, Playfair Card & Toy Shop v. Landon Holding Corp., Mun.Ct., 134 N.Y.S.2d 651). If there had been such total damage as is contemplated...