Stephens v. Ely

• Decision Date: 27 February 1900
• Citation: 162 N.Y. 79
• Court: New York Court of Appeals Court of Appeals
• Parties: BENJAMIN F. STEPHENS, Appellant, v. SARAH M. ELY et al., Respondents.

162 N.Y. 79

56 N.E. 499

STEPHENS

v.ELY et al.

Court of Appeals of New York.

Feb. 27, 1900.

Appeal from supreme court, appellate division, First department.

Action by Benjamin F. Stephens against Sarah M. Ely and others to recover the value of certain fixtures. From a judgment of the appellate division (43 N. Y. Supp. 762) affirming a judgment in favor of defendants, and an order denying a new trial, plaintiff appeals. Reversed.

Charles N. Morgan, for appellant.

Justus A. B. Cowles, for respondents.

PARKER, C. J.

When the defendants left the premises, which they had occupied for a number of years as tenants of the plaintiff, they took with them certain fixtures, the value of which the plaintiff seeks to recover in this action. In August, 1887, the first lease of the premises was executed; the term to begin September 1, 1887, and to end May 1, 1889. The defendants entered into possession, using the premises as a boarding school for young ladies, In a very short time thereafter some of the pupils became ill. An investigation of the condition of the plumbing followed, and the defendants offered to put in new plumbing, provided the plaintiff would consent that the title thereto should continue in them, and they be permitted to remove the same, conditioned only that they should restore the premises to their former state. This offer was accepted, and in pursuance of this agreement the fixtures which are the subject of this controversy were put in by the defendants. When the evidence to establish this oral agreement and the putting in of the fixtures thereunder was offered, the plaintiff's counsel objected; but his objection was overruled, as we think, erroneously. If the defendants had removed the fixtures at any time before the expiration of the first lease, the ruling of the court would have been correct, and the objection that the writing expressed the contract between the parties, and could not be affected by parol, would not have been well taken; for it constituted a new and independent agreement made subsequent to the lease,-an agreement that the parties were entirely competent to make,-and by it the fixtures remained subject to the right of the defendants to sever them from the building at any time prior to the completion of the term. There was one other way by which the defendants could have preserved the right existing under the first lease to remove the fixtures during a period covered by a subsequent lease, and that was by incorporating into the new lease a statement that the right to remove such fixtures was to continue during the new term. These defendants did not remove the fixtures during the period covered by the first lease. Instead, they leased the premises for a year from May 1, 1889, with the privilege of two renewals of one year each, and in the new lease no reservation of the right to remove the fixtures was made, nor was the subject mentioned. The lease contained the usual covenants to surrender the premises demised in as good state and condition as reasonable use and wear would permit, and a special provision authorizing the...