Argued January 13, 1926
Decided February 24, 1926
Appeal from the Supreme Court, Appellate Division, Second Department.
John M. O'Neill and Robert P. Orr for appellant.
Sidney A. Clarkson for respondent.
On January 3, 1922, the respondent leased to the appellant a certain store, No. 1421 Fulton street in the borough of Brooklyn for three years from December 15, 1921, at a yearly rent of $600 and "that proportion of any increase in the taxes on the building of which the premises herein described form a part, over those assessed for the year 1921, which the annual rent of said tenant bears to the total annual rent of the entire building." The leased premises consisted of the store floor in a two-story frame building. The upper floor was occupied as a residence with which the lessee had nothing to do. The store was about twenty-five feet wide, thirty feet deep, with an extension about thirty feet in depth. There was no cellar under any part of the building. Under the store proper was a space between the ground and the floor. In some places this depth was four or five feet, and at other places the dirt came within about a foot of the floor. Wooden girders, resting on wooden posts, supported the cross beams on which the store floor was placed. There was no supporting wall on the sides or in the rear. The appellant rented the store for a tinsmith business.
On August 11, 1922, the floor of the store collapsed, and the building department prohibited further use thereof until the building was reconstructed in accordance with its directions. The superintendent of buildings, in his notification to the owner, specifying the defects of construction, also stated that the floor had collapsed under excessive weight. Whether the weight was excessive for a properly constructed floor, or was excessive merely for this particular floor, is not stated. No facts are given to show what weight the floor could or should have sustained. There was some evidence that the floor beam was rotten.
The plans of the building department required the owner to reconstruct its house. To be specific, they called for:
"installation of concrete footings 20" x 12", under front, rear and westerly walls, and under six new Lally columns — each 18" x 18" x 12"; excavation of earth in cellar to uniform depth of five feet; new 12" brick walls on front, rear and westerly side; installation of three 6" Lally columns in center of buildings; three 6" Lally columns under easterly upper wall; two iron I beams, one in center and one under easterly upper wall, cross beams 3" x 12" 16" over centers, and new flooring."
Where there was no cellar the owner was required to construct one. This called for excavation — the digging of a cellar, also the construction of cellar walls, and the installation of iron girders. Brick walls were to be constructed on the front, rear and westerly side.
This work being done by the owner at the cost of $1,733.91, it has sued the tenant in this action to recover the amount, claiming that by the terms of the lease the tenant was required to do this work.
The lease stated: "All repairs made necessary to the interior of the premises hereby demised are to be made by the Tenant." It also contained the following general provision:
"AND the said Tenant further covenants and agrees that it will comply with all the requirements of the Board of Health, Tenement House Department, Building Department, Department of Water Supply, Gas and Electricity, Police and Fire Departments, and Department of Fire Prevention, and other municipal authorities, and also of the Department of Labor of the State of New York, and that it will not create nor permit any nuisance in the premises hereby rented to the annoyance of neighboring occupants, and shall also promptly comply with and execute all rules, orders and regulations of the New York Board of Fire Underwriters."
Neither of these clauses sustain the plaintiff's claim. The repairs were not to the interior of the leased premises, that is, the store. The requirements of the building department pertained not to the store or the premises leased by the tenant to carry on the tinsmith business, but to the cellar and foundation walls not leased by the tenant. After the reconstruction, the owner had a substantially new building in part. The foundations were entirely changed, strengthened and made new. The frame superstructure remained the same, but the cellar and side walls formed a new and substantial part of the building. Why should the tenant pay for this? The clauses of its lease did not require the tenant to make structural changes or to pay for rebuilding. The rent of the store was only $600 for a term of three years. The cost of these repairs or reconstruction equals within a few dollars the amount of the three years' rent. That such a liability was to be cast upon the tenant by this lease could hardly have been within the contemplation of the parties.
The construction of the cellar and the reconstruction of the foundations of this building were of a structural nature requiring the owner to meet the cost thereof. ( Herald Square Realty Co. v. Saks Co., 215 N.Y. 427; Holden v. O'Brien, 209 App. Div. 266; affd., 240 N.Y. 560; Cohen v. Margolies, 192 App. Div. 217; affd., 232 N.Y. 584.)
If it were a fact that the floor, reasonably safe, collapsed because of the tenant's negligence in overloading it, he would be bound to repay the cost of restoring it to its original condition. The defendant gave some evidence that this cost would amount to about $470; the plaintiff gave no evidence on this point. The inspector's report is not evidence of negligence; at best it is a mere conclusion. However, the plaintiff should have a new trial to prove this negligence, if possible.
The judgments heretofore entered in the plaintiff's favor should, therefore, be reversed, and a new trial granted, with costs to abide the event.
HISCOCK, Ch. H., CARDOZO, POUND, McLAUGHLIN, ANDREWS and LEHMAN, JJ., concur.
Judgments reversed, etc.