Gallup v. . Albany Railway Company

Reynolds, C. As a part of the rent for the demised premises, the defendant agreed to pay the “ ordinary taxes and water rates,” and this it did not do, after due admonition, and the plaintiff being personally liable, was compelled by legal process to pay the taxes for 1868, and the water rates for 1869, with the usual costs and expenses, and to recover the amount thus paid this action is brought. The substantial defence is, that the defendant was evicted either by the plaintiff or by title paramount, and depends substantially upon the following facts: The demised premises are located within the corporate limits of the city of Albany. The defendant was the owner of and operated a street railway by horse power, in State street and Washington avenue, in Albany, and occupied the premises for workshops, stables and yards for cars, horses, provender and commodities appropriate to its business. The defendant had, prior to the demise in question, occupied the premises for its purposes, and had, by various appliances, contrived to get its cars from Swan street upon the premises when inclined so to do, for storage or otherwise. In this condition of things, it maybe assumed that the uninterrupted occupation of the premises, and the approaches from the street, was a thing devoutly desired by the defendant. It happened, however, that the *5 •corporation of the city of Albany, in the exercise of an unchallenged authority, directed a change in the grade of Swan street, in front of the demised premises, and it is undenied that in the execution of this authority the defendant was, to a considerable degree, discommoded in the use of the premises. This did not result, however, from the dispossession of the defendant from any part of the premises demised, but from the difficulty of ingress and egress resulting from the alteration of the grade of the street in front of the premises. The defendant, previous to the present demise, had operated its railway in Swan street, with the consent of the common council, and was doubtless obliged to conform its tracks to the grade of the street, no matter how often altered by the city authorities, and if the owners of property, bounded on the street, must suffer with others in like condition, all the inconveniences which •ordinarily attend municipal improvements of the character disclosed in the ease, it must, I think, he assumed that the contract in question was made with reference to such a possible contingency which did in fact occur. (Folts v. Huntley, 7 Wend., 210.) And there being no covenant by the plaintiff to protect the defendant from injury occasioned by act of the city, I do not see how the defendant can claim any abatement from the rent agreed to be paid by the terms of the lease. It seems to he very clear that there was no eviction, or any thing bearing much resemblance to it, because there was no deprivation of the defendant in the occupation of the premises, or any part "thereof, during the term. The injury complained of resulted from a lawful act of the city, done, so far as appears, in a proper manner, and it can make no difference that under a provision of the law, the work ordered by the city was done by the plaintiff or under his direction, or by contractors appointed or employed by the city at his expense. If, as is alleged, the work was done in a negligent manner, the remedy is not in a refusal to pay the rent agreed upon in the lease. If the foregoing views are correct, it does not appear material to consider any other question. The defence rests upon the allegation that the injuries sustained resulted from the *6 wrongful act of the plaintiff, which we do not find to be the-fact, and if not the fact, the defence has no foundation in any form, unless there may be some claim for damage for negligence.. The judgment must be affirmed. All concur. Judgment affirmed.