Kalmon Dolgin Co. v. Walnut Lanes Inc.

Order of the Appellate Term, Second Judicial Department, dated April 8, 1966, reversed, on the law and the facts, and judgment of the District Court, Nassau County, entered September 23, 1965, awarding possession of leased premises to the landlord, etc., reinstated, with costs in this court and $25 costs and disbursements in the Appellate Term to the landlord. In our opinion, considering the lease as a whole, in the light of all its constituent parts, there is ambiguity or at least imperfectly expressed obligations regarding maintenance of the fire insurance protection for the demised premises. In such a ease, it is proper to admit parol evidence of the circumstances and negotiations prior to execution and also, if necessary, to look at the practical construction given the lease subsequent to execution (see Brooklyn Public Lib. v. City of New York, 250 N. Y. 495; Tobin v. Union News Co., 18 A D 2d 243, 245). The record indicates that the present tenant and its predecessor paid fire insurance premiums on the premises for seven years without objection. This construction of the lease from the outset, especially since it continued for so many years, is entitled to great weight because it was made “by the parties themselves when under the influence of conflicting interests” (Carthage Tissue Paper Mills v. Village of Carthage, 200 N. Y. 1, 14). It shows it was the intent of the parties to have the tenant pay all such premiums. Beldoek, P. J., Christ, Rabin, Benjamin and Munder, JJ., concur.