Manufacturers Trust Co. v. Bach, O-R

CourtNew York City Municipal Court
Writing for the CourtARTHUR WACHTEL
Citation32 Misc.2d 858,223 N.Y.S.2d 86
PartiesMANUFACTURERS 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.
Decision Date01 September 1961
Docket NumberO-R

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.

Page 87

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 [32 Misc.2d 859] 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

Page 88

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...

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5 practice notes
  • Atkinson v. Village of Ossining
    • United States
    • United States State Supreme Court (New York)
    • 27 Septiembre 1961
    ...such snow or ice to be removed, or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice.' [32 Misc.2d 858] Despite the language above quoted, the courts have declared that written notice is not required where the municipality makes a special Pag......
  • Tilbern Realty, Inc. v. Lax Drug Co.
    • United States
    • New York City Court
    • 17 Abril 1969
    ...11, the tenancy continues. I am aware that one of my colleagues takes a contrary view. Matter of Manufacturers Trust Co. v. Bach, 32 Misc.2d 858, 223 N.Y.S.2d 86 (Munic. Ct., Bronx Co. 1961); Siegel v. Goldstein, 1 Misc.2d 839, 148 Page 761 N.Y.S.2d 266 (Mun.Ct. Bx. Co. 1955); Playfair Card......
  • Mattal v. American Trust Co.
    • United States
    • California Court of Appeals
    • 18 Octubre 1962
    ...to be no California decision construing the term 'restore,' the recent New York case of Manufacturers Trust Company v. Bach (1961), 32 Misc.2d 858, 223 N.Y.S.2d 86, contains an analysis of the words 'restore' or 'rebuild' as used in the fire clause of a lease. The court there stated, 'The u......
  • Noah's Ark, Division of Eckmar Corp. v. Geib
    • United States
    • United States State Supreme Court (New York)
    • 22 Mayo 1968
    ...an express agreement which excludes the operation of section 227 of the Real Property Law (see Matter of Mfrs. Trust Co. v. Bach, 32 Misc.2d 858, 223 N.Y.S.2d 86 and cases cited Neither counsel nor I have been able to find any authority in New York construing the second part of paragraph SE......
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5 cases
  • Atkinson v. Village of Ossining
    • United States
    • United States State Supreme Court (New York)
    • 27 Septiembre 1961
    ...such snow or ice to be removed, or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice.' [32 Misc.2d 858] Despite the language above quoted, the courts have declared that written notice is not required where the municipality makes a special Pag......
  • Tilbern Realty, Inc. v. Lax Drug Co.
    • United States
    • New York City Court
    • 17 Abril 1969
    ...11, the tenancy continues. I am aware that one of my colleagues takes a contrary view. Matter of Manufacturers Trust Co. v. Bach, 32 Misc.2d 858, 223 N.Y.S.2d 86 (Munic. Ct., Bronx Co. 1961); Siegel v. Goldstein, 1 Misc.2d 839, 148 Page 761 N.Y.S.2d 266 (Mun.Ct. Bx. Co. 1955); Playfair Card......
  • Mattal v. American Trust Co.
    • United States
    • California Court of Appeals
    • 18 Octubre 1962
    ...to be no California decision construing the term 'restore,' the recent New York case of Manufacturers Trust Company v. Bach (1961), 32 Misc.2d 858, 223 N.Y.S.2d 86, contains an analysis of the words 'restore' or 'rebuild' as used in the fire clause of a lease. The court there stated, 'The u......
  • Noah's Ark, Division of Eckmar Corp. v. Geib
    • United States
    • United States State Supreme Court (New York)
    • 22 Mayo 1968
    ...an express agreement which excludes the operation of section 227 of the Real Property Law (see Matter of Mfrs. Trust Co. v. Bach, 32 Misc.2d 858, 223 N.Y.S.2d 86 and cases cited Neither counsel nor I have been able to find any authority in New York construing the second part of paragraph SE......
  • Request a trial to view additional results

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