Davies v. Clark

Patterson, J.: I am not able to concur in the opinion of Mr. Justice Ingraham. It inverts both the legal and contract relations of the parties, and throws upon the lessors the burden of performance or the consequences of the non-performance of the covenants of the lessee. There are two elements, entering into the consideration upon which the lease was made by the lessors: First, the covenant of the lessee to pay rent as such, and, second$ the covenant of the lessee to make [69] permanent improvements or betterments on the demised premises. Time was of the essence of both these elements; the ’ rent was to be paid at fixed periods and the improvements were to be made and completed within a specified time, viz., ninety days from the 1st day of May, 1894. The third canse of action set forth in the complaint, and the only one now before the court, is for damages for the breach of the covenant relating to the permanent improvements. The proof shows that the parties had adopted, prior to the date of the lease, a general plan for those improvements, .and the covenant contained in the lease is, that the lessee shall, within the time specified, make and complete the improvements according to that plan and its specifications. The principal defense is, that the improvements could not be made, because the building department of the city of Mew York had not approved of the plan; that the work could not be done under it for the want of such approval, and that, therefore, performance was excused. I cannot concur in the view that that situation constitutes in any manner a defense to this action for the breach of the covenant. I agree that the improvements contemplated by that covenant could not lawfully be made without the assent of the building department, and that is as broad a concession as can be required. But it was hi no way incumbent upon the owners, as between them and the lessee, to procure the consent. The lease was not entered into on an implied promise that the landlord would take the burden of getting that consent. It is the lessee’s covenant to build, and that would imply that he assumed the obligation of doing everything necessary to the full performance of his covenant, which would include the submission of the plans to the proper authorities, and the procurement of, or the effort to procure, their permission to go on with and complete the work under those plans and specifications. But nothing is left to inference or implication here. The lessee expressly and in terms assumed, as between him and his lessors, the duty and obligation of procuring . the assent, and why that is ignored I cannot understand. Covenants are to be construed according to their plain meaning and obvious intent, and this defendant stipulated that he would “ comply with all the requirements of the board of health, municipal authorities, and police and fire departments of the city of Mew York.” That stipulation. covers the whole of the transaction. It relates not only to the [70] use of the demised premises, hut to everything to be done by the lessee that involved compliance with the requirements of the municipal authorities. Therefore, he stood bound to get or try to get the plans approved. He never did either of those things within the ninety days. The plans and specifications were not presented nor were they submitted to the proper “ municipal authority,” and the covenant was clearly broken by the lessee at the time this action was begun. Ho plausible excuse is offered, even. That the plans were subsequently rejected by the building department and modified plans necessitated, does not alter the position of the parties at the time the action was brought. Had the original plans and specifications been presented within a proper time, such modifications as were necessary to meet the requirements of the authorities might have been made, and the covenant have been performed substantially within the prescribed time, but no attempt was made at performance. Tim defendant remained passive, allowed the time of performance to expire, and to escape from liability relies upon events which happened subsequently, and which in no way would have influenced him during the time fixed for performance. He advisedly made his covenant; he was bound to perform it or at least try to perform it, or show a valid excuse; and when the time for performance had fully passed he had no such excuse. He was grossly in default. It is further claimed by the defendant (appellant) that the action was prematurely brought, and that no cause of action accrued while he remained in possession paying rent or until the lease was ended by expiration of the term or re-entry of the lessors. In Ganson v. Tifft (71 N. Y. 48) the question arose in an action for damages for failure to rebuild pursuant to a covenant by which the lessor stipulated that if a certain elevator were destroyed by fire he would rebuild it within six months. A fire occurred, the elevator was destroyed, the lessor did not rebuild within the allotted time, and the court said that the lessee’s remedy for damages was complete upon the failure to rebuild the elevator. Agate v. Lowenbein (57 N. Y. 604) and Chamberlain v. Parker (45 id. 569) recognized the right of the lessor to sue for a breach of covenant of lessee as soon as the covenant is broken, and without waiting for the expiration of the tenancy, provided injury has happened in consequence of the breach. [71] The other defenses interposed by the supplemental answer to the third cause of action depend altogether upon controverted matters of fact in respect of which there was conflicting evidence. With the referee’s conclusions on that evidence 1 see no reason to interfere. The measure of damages was correctly determined. It is the amount of the decrease in value of the reversion at the time the breach occurred (Chamberlain v. Parker, 45 N. Y. 569, and cases there cited), and there was enough proof on this subject to authorize the finding of the referee. The judgment should be affirmed, with costs. Williams and O’Brien, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.