Opinion
Submitted May 9, 1912
Decided June 18, 1912
A.J. Dittenhoefer and Dudley F. Phelps for appellant.
David H. Taylor and Charles W. Coleman for respondents.
No recovery was permitted for the expense of furnishing new carpets or new chairs, but the verdict was confined to the reasonable cost of repairing certain old chairs and interest on the amount. By the consent of both parties this question was submitted to the court for determination as one of fact and law, and the verdict directed under these circumstances decided all questions of fact involved in favor of the plaintiffs. It was, therefore, found that the chairs in question were repaired within the meaning of the lease, and that what was done to them was neither an alteration nor an improvement to the premises within the meaning of the eighteenth clause.
There was evidence tending to show that while all the chairs were in good order at the commencement of the lease, some of the frames were afterward broken; others had become loose and "wobbly" from the need of a bolt, nut or pivot; the plush covering the seats in many cases was torn, worn, soiled and unsanitary; the tow filling had become broken into fine stuff, dirty, dusty and matted, and all the chairs covered by the verdict needed repairs of some kind. None of these chairs were replaced, but the frames were repaired and the seats were reupholstered.
Chairs so made as to conform to the plan and shape of a theatre, fastened to the floor and used for no purpose except to seat the audience, are fixtures attached to the realty. The old theory which made physical annexation the sole test has been expanded so as to include intention, use and adaptability. This seems to be conceded by both parties and the concession is in accord with the authorities. ( Grosz v. Jackson, 6 Daly, 463; Rieser v. Commeau, 129 App. Div. 490, 493; N.Y. Life Ins. Co. v. Allison, 107 Fed. Rep. 179; Potter v. Cromwell, 40 N.Y. 287; Voorhees v. McGinnis, 48 N.Y. 278.) The question is usually a mixed one of fact and law, and according to the evidence the court could have found, and is presumed to have found, that the chairs which were repaired were an indispensable part of the theatre and that they came within the provisions of the eighteenth and the twenty-sixth clauses of the lease. Unlike the scenery, wardrobe, properties, etc., mentioned in the eleventh clause, the chairs were not mentioned at all in the lease, but passed only as part of the building itself, which was leased as the Grand Opera House.
The obligation to repair during the term was not modified or cut down by the obligation to surrender at the end of the term in good condition, reasonable use and wear excepted. ( Lockrow v. Horgan, 58 N.Y. 635; Kling v. Dress, 5 Robt. 521.) Even if the two clauses should be read together, the tenant would rest under the duty imposed by both, and hence required to keep as well as to leave the chairs in repair. ( Bushwick Realty Co v. Sanitary Fire Proofing and Contracting Co., 129 App. Div. 533, and cases cited.)
It is provided by the tenth clause of the lease that the lessors shall not be liable for the delay necessarily caused by fulfilling the orders of the fire, building or health departments and that "any hindrance occasioned in obeying the same shall not affect or impair the rent to be paid," provided the improvements or alterations required should be made as promptly as was reasonable under the circumstances. As between the lessors and the lessee no active obligation was placed on the former to comply with the orders of the city departments. If they did comply, however, they were relieved from liability if they acted with reasonable promptness.
On the 19th of January, 1904, while the first term of the lease was in force, the fire, building and health departments united in serving a notice on the lessee requiring repairs as well as alterations relating to the means of exit from the theatre and certain appliances to prevent fire. These requirements were fifteen in number and some of them were so comprehensive as to call for extensive work. On the 4th of February following the commissioner of health ordered that the theatre be closed on the ground that it was "in a condition detrimental to health and dangerous to life, * * * until such time as the dangerous conditions are removed." It remained closed until the tenth of the same month, when it was allowed to open again. The rent was paid during this period and the lessee was prevented from making money by giving entertainments and was compelled to refund money for tickets sold in advance. Some of the requirements of the public authorities were complied with by the lessors and others by the lessee, the former paying for the alterations and the latter for the repairs. Work was done by each party both before and after the theatre was closed, the mechanics of both working side by side and some of the time day and night. No claim for damages was made by the defendant until this action was commenced four years later.
The rights and obligations of the parties depend on the lease. There was no covenant on the part of the lessors to make repairs of any character, and, hence, as between themselves and the lessee they were under no obligation to comply with the order made in 1904. ( Franklin v. Brown, 118 N.Y. 110, 113; Witty v. Matthews, 52 N.Y. 512, 514; Daly v. Wise, 132 N.Y. 306.) While they might have been subject to an action for a penalty brought by the city that was no concern of the lessee and gave him no right to compel action by the lessors. Even if non-compliance should result in the closing of the theatre, the lessee would have no remedy against the lessors, for he had failed to protect himself against such a contingency by an appropriate covenant. After the order was served there was no agreement on the part of the lessors to comply therewith, and, hence, the counterclaim can be supported only by proof that the landlords volunteered to comply with the order either in whole or in part but failed to make the improvements or alterations they assumed to make "as promptly as reasonably could be done" after they undertook the work. We think, as the trial court held, that there was no evidence to "justify the jury in finding that the doing of the improvements or alterations was unreasonably delayed." It was not shown that the lessors could have commenced the work they assumed to do any sooner than they did, and as soon as it was commenced it was continued to completion as rapidly as possible. There was no evidence of negligence or unnecessary delay during the progress of the work. The closing of the theatre was owing as much to non-performance by the lessee of what he was required to do as to non-performance of what the lessee claims the lessors were required to do. Although years had passed since the damages, as alleged in the counterclaim, were sustained before the action was commenced, the lessee had not made any complaint nor presented any claim to the lessors. He did not even assert a right to damages in his original answer served while he was negotiating for a new lease. Upon failing to secure another lease, however, as he testified, he "put in the counterclaim" by an amended answer. We think that the counterclaim was properly dismissed.
The judgment should be affirmed, with costs.
CULLEN, Ch. J., GRAY, HAIGHT, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment affirmed.