New York Real-Estate & Bldg. IMP. Co. v. Motley
| Decision Date | 09 October 1894 |
| Citation | 143 N.Y. 156,38 N.E. 103 |
| Parties | NEW YORK REAL-ESTATE & BLDG. IMP. CO. v. MOTLEY. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from common pleas of New York city and county, general term.
Action by the New York Real-Estate & Building Improvement Company against Thornton N. Motley to recover rent alleged to be due plaintiff under a lease of certain rooms which were so damaged by fire as to be rendered untenantable. From a judgment of the general term (22 N. Y. Supp. 705) affirming a judgment for defendant, plaintiff appeals. Affirmed.
The lease contained the following provision: ‘And it is further agreed by and between the parties hereto that if without fault, neglect, or improper conduct of the party of the second part, his agents, servants, or tenants, the premises hereby leased, or the building, shall be damaged by fire, the elements, or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs; but if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then, from the time of the happening of said events, or either of them, this lease, and the term hereof, shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time.’
N. B. Sanborn, for appellant.
David Leventritt, for respondent.
Nothing would need to be added to the very satisfactory opinion of the general term in this case were it not for the elaborate criticism to which it has been subjected in the argument of the appellant. The question was whether the emergency contemplated by the act of 1860 (chapter 345), which is an injury by fire making the premises untenantable, was covered and provided for by the terms of the lease between the parties, and for that reason taken out of the scope and operation of the statute. The lease does provide expressly for two contingencies. One of them is such a destruction of the building as requires it to be rebuilt, in which event all rent ceases, and the lease terminates. The other is an injury by fire which admits of a partial occupancy, in which event the accruing rent is to be measured by the proportion of available occupancy. But what occurred was something different from either described contingency. The fire did not compel a rebuilding on the one hand, nor did...
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...to defendant any rights that the statute does not. Butler v. Kidder, 87 N. Y. 98;Vann v. Rouse, 94 N. Y. 401;N. Y. R. E. & B. I. Co. v. Motley, 143 N. Y. 156, 38 N. E. 103. It is further contended that the rights of the parties under the lease are different from their rights under the statu......