Dodd v. Ozburn

Evans, J. (After stating the facts.) 1. The principal question in this case is, does such a use of premises by a subtenant as increases the rate of insurance approximately two per cent, violate a permission to sublet, stated in the following terms: “I would not have any objection to your subletting the whole or any part [of the premises] to a reputable business concern, which would not affect the property, but I would not allow any [382] part of the premises to be sublet for a saloon or liquor purpose?” At common law the tenant could sublet the demised premises, or put them to any use the owner might have done, except that he must do no act to the injury of the inheritance. 1 Taylor’s Landlord & Tenant (9th ed.), §172; Presby v. Benjamin, 169 N. Y. 378. This right may be qualified in the lease; and where the lease contains restrictive covenants relative to the use of a building, they are to be construed most strongly against the covenant. McAdam’s Landlord & Tenant, §139; Id. §491. In this State a tenant can not sublet without the landlord’s consent. If the tenant sublets with the landlord’s consent, the terms upon which the subtenant’s right to possess and enjoy the use of the property must be found in the landlord’s permission. The landlord’s assent to a sublease in this case involved three conditions: (1) it might be sublet only to a reputable business concern; (2) such subletting must not affect the property, and (3) it must not be used as a saloon. There is nothing in the evidence from which it could even be implied that the subtenants were not a reputable business concern; and as the premises are being used as a garage for automobiles^ it only remains to inquire if such use will “affect the property.” The rate of insurance on the building has been advanced approximately two per cent., because of the establishment of a garage therein, and it is insisted that this increase of insurance tariff seriously affects the property. If the common law controlled this subtenacy, the lease would not be vacated nor the subtenant’s use of the premises as a garage be enjoined. For there is nothing in the evidence to justify the conclusion that such a use is either a nuisance or injures the inheritance. In other words, the use was lawful, and the landlord was bound to contract against any specific lawful use to which he did not wish the demised premises put. The landlord’s consent in this case gives the tenant substantially the same right as to subletting which a tenant had at common law, with the restrictive covenant against using the premises for a saloon. We think that the stipulation that the subletting must not affect the property, considered by itself or in connection with the circumstances attending the execution of the lease, meant that the use must not affect the physical condition of the property. It could not have referred to the character of the tenant, because there was a stipulation on that point; nor could it have referred to the character of [383] "the business, since the landlord, in making a restriction as to the ■use to which it might be put, limited the restriction to a saloon. “When we look to the negotiations which led up to the lease, wherein "the tenant informed the landlord that he was undecided to what use the premises might be put, and suggested several businesses which might be conducted in the building, some of which would inurease the insurance rate, and no restriction as to use was inserted in the lease, we may easily conclude that the rate of insurance was not a factor in determining whether any particular lawful business would aifeet the property. This is rendered more certain when it is ■considered that the prior use of the building had been for storage, and the rent promised in this lease was largely in excess of what had been previously received. 2. The court would not permit the plaintiffs to prove that the Tate of insurance on adjacent buildings owned by them, and on their tenant’s merchandise contained therein, had been increased on acuount of the demised premises being used as a garage. If the business conducted in the demised premises was authorized by the landlords’ permission, then, of course, they will not be heard to complain of the effect of such business on the rate of insurance on the adjoining property. Judgment affirmed. All the Justices concur.