Bates v. Johnston

Van Brunt, P. J. This action was brought to recover one-half of the value of buildings now standing on certain lots in the city of Hew York, which the plaintiffs claim to be due to them and the appellant Bingham from the defendants Johnston, the lessors, pursuant to the provisions of a lease of said property for 21 years from the 1st of May, 1867. This lease contained covenants for the payment of rent, taxes, etc., upon the part of the lessees, and a grant in consideration of the covenants contained in the lease for the period of 21 years. It also contained a provision that in case of the non-payment of rent, or default should be made in any of the covenants contained in the lease on behalf of the lessees, that the lessors should have the right wholly to re-enter on said premises, and remove all persons therefrom, and the same to have again, repossess, and enjoy as in their first and former estate, anything therein contained to the contrary thereof in any wise notwithstanding. The lessees covenanted to erect a building upon the premises of certain descriptions and dimensions, and the lease contained a mutual covenant by the parties that at the expiration of the aforesaid term the buildings upon the premises should be appraised, and either one-half of such appraised value paid to the lessees, or the parties of the first part would give a renewal lease. The lessees defaulted in the payment of rent and taxes, and in December, 1879, were dispossessed by summary proceedings. The term of the original lease having expired in May, 1888, the successors of the lessees brought this action to have the value of the buildings appraised, and the sum due and payable to the plaintiffs and the defendant Bingham, under the provisions of the lease, ascertained and determined, etc. It might not be necessary to add anything to the opinion rendered by the learned judge who tried the cause in the court below; but in view of the claim which is made of the result of the decision in the case of Finkelmeier v. Bates, 92 N. Y. 172, it may not be improper to add one or two suggestions to the views which in said opinion were expressed. It is undoubtedly true that in the case cited, where the covenants of this identical lease were under consideration, the court may have used language which might be construed into an affirmance of the claim of the appellants that the covenant to pay one-half the value of the buildings is an independent one; but no such question was before the court at that time, and the language used by the court was simply an answer to the question which was then before the court for its decision, and in no way was it attempted to forestall Or to decide upon a claim such as is presented in the case at bar. All that was decided in that case was that the time fixed in the covenant to pay for the buildings was the expiration of the term, and that that phrase related to time, and not to the estate of the lessee. The provision of the lease in regard to re-entry was to the effect that, in case of a default upon the part of the lessees, the lessors might re-enter, repossess, and enjoy the premises in question as in their first and former estate. How, if the lessors were under an obligation to pay for these buildings at the expiration of the term mentioned in the lease, and- such obligation was a lien upon these premises, how was it possible for them to re 406 enter, have again, repossess, and enjoy as in their first and former estate? Here is a clear intention, shown by the contract itself, that, in case of a default upon the part of these tenants, the whole estate shall revert, unincumbered by anything, that the lessees may have done, to the lessors, who shall hold the premises thereafter as in their first and former estate. This seems to be a clear definition of the rights of these parties; and it seems to us that these covenants were considered by the parties to be dependent, and not independent. The lessees were to enjoy the premises, and to have a right to payment for the buildings, or a renewal of the lease, upon condition of their performing the covenants contained in the lease. This necessarily followed from the fact that continued enjoyment of the premises by the lessees was undoubtedly contemplated, because the covenant for the payment for the buildings is coupled with a covenant to renew the lease, which would be impossible if the. lease had ceased to exist years before the time to claim such a renewal had arrived. All these circumstances show clearly that the condition upon which the tenants were to be in a position to claim payment for the buildings was a compliance with the covenants in the lease. The grant is made in consideration of the rents, covenants, and agreements mentioned in the lease. They were the consideration for the grant; and to say that the lessee may repudiate the consideration which he has to pay, and then claim performance of the covenants on the part of the lessor, does not seem to be equitable or just, and we do not think is the law. We think, therefore, that the judgment should be affirmed, with costs. All concur.