
    Hotel Holding Company, Plaintiff, v. Wetherbee & Wood, Defendant.
    First Department,
    December 31, 1914.
    Landlord and tenant—lease providing for expense of removal of encroachments by order of municipal authorities, construed — waiver of provision of lease by landlord.
    The owner of a hotel in the city of New York leased the premises under an agreement providing that “ If any order or regulation of any of the municipal or city authorities * * * shall within five years from the date of the commencement of the term of this lease, require structural changes in the building on the demised premises, necessitated * * * by the widening of Fifth Avenue. * * * then the cost of complying therewith shall be borne and paid by the lessor, provided, however, that such order, regulation or requirement shall first have been reduced to judgment.” The tenant bound itself at its own cost to execute and comply with all ordinances and requirements of the public authorities “affecting said premises, except the structural changes or alterations which are to be made by the lessor at its own expense as provided ’’ in the provision of the lease above quoted. Thereafter the tenant on receiving notice requiring the removal of a terrace on the Fifth avenue side of the building notified the owner, who, without requesting the tenant to contest the validity and force of the order, procured the removal of the incumbrance in order to avoid the apprehended expense and damage due from a removal by the city.
    Held, that the owner thereby waived his right to require that the order be “ reduced to judgment ” and cannot recover from the tenant for the expense of the removal.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Robert C. Beatty, for the plaintiff.
    
      Alfred A. Wheat, for the defendant.
   Hotchkiss, J.:

On November 30, 1908, plaintiff, the owner of the Hotel Gfotham, leased the premises to defendant, a corporation, under which lease defendant took and still retains possession. At the time of the lease a so-called terrace existed on the Fifth avenue side of the building extending from the building line to the stoop line. This terrace was without a roof, but was fenced in from the sidewalk by a substantial stone paling resting on a stone foundation. By one of the articles of the lease defendant bound itself at its own cost to execute and comply with all ordinances and requirements of the public authorities of the borough of Manhattan “ affecting said premises, except the structural changes or alterations which are to be made by the lessor at its own expense as provided in the Fourth Article hereof. ” By the 4th article defendant bound itself to make, at its own cost, all repairs upon the demised premises, and ‘ If any order or regulation of any of the municipal or city authorities * * * shall within five years from the date of the commencement of the term of this lease, require structural changes in the building on the demised premises, necessitated * * * by the widening of Fifth Avenue or Fifty-fifth Street, and concerning which said authorities or board at such time has jurisdiction to issue said order, regulation or requirement, then the cost of complying therewith shall be borne and paid by the lessor, provided, however, that such order, regulation or requirement shall first have been reduced to judgment.”

The proposed widening of Fifth avenue was a matter of common discussion at the time of the execution of the lease, and on April 21,1911, defendant wrote plaintiff, saying it had received notice from the commissioner of public works instructing it to make alterations to the hotel premises in preparation for the widening, which alterations would involve the removal of the terrace. Continuing, defendant said, “while our lease provides that this work shall be done and the expense of same shall be borne by you, we are writing to ask whether or not you would prefer that we undertake it and deduct the cost from our rent. If, on the other hand, you conclude to attend to.the matter, we shall be glad to have you submit the necessary plans to us at an early date, so that the work will meet with no unnecessary delay. ” On May seventeenth plaintiff’s attorney replied to the above and asked whether defendant could indicate “just what changes are required to be made so that I may report to the directors as to whether such changes are structural changes; ” and in the same letter the attorney said “that whatever changes are necessary they [plaintiff] prefer to make themselves, should they be such changes as they are required under the lease to make.” On May nineteenth defendant answered the above, saying that it was unable to •give any definite information in regard to the necessary changes; that such information would naturally come from an architect; that defendant had merely received the notification from the authorities and had forwarded the same “so that your company might take the matter in hand in accordance with the terms of the lease.” On May 25, 1911, a notice was duly issued by the president of the borough of Manhattan and served on defendant, requiring the removal of the encroaching terrace, and this notice defendant on the following day sent to plaintiff. There appears to have been no further communication between the parties, nor was there any request by plaintiff that defendant should refrain from removing the terrace or that it should take any steps to contest the validity and force of the order for its removal, which order the submission states the “plaintiff was obliged to comply with.” In this situation on August 4, 1911, with the knowledge of the defendant and for the purpose of avoiding the removal of the terrace by the city authorities, whereby the plaintiff apprehended it might be subjected to excessive costs and that injury might be done to the building, it let a contract for the work, which was subsequently completed at a cost of nearly $13,000, for which amount plaintiff claims to be entitled to judgment on the theory that it has paid under compulsion by the city authorities moneys which it was the duty of the defendant to pay inasmuch as there was no obligation resting on plaintiff to pay until and unless the order of the borough president had “been reduced to judgment,” which never occurred. Whether the words last quoted threw upon the defendant the necessity of contesting the validity of any ordinance before the cost of complying therewith should be paid, or whether that duty lay upon the plaintiff, it is perfectly manifest that this provision was one intended for the plaintiff’s benefit, but which it had the right to waive. It is equally clear that the hereinbefore recited acts of the plaintiff constituted such a waiver. There is no suggestion that the order of the borough president was defective, and in the submission it is stated that the plaintiff “was obliged to comply” with it. The order appears to have been based on a resolution of the board of estimate and apportionment dated April 20, 1911, and that in order to prevent delay to the city in its work of widening the street, the owners and tenants were notified to remove all encroachments “ at the earliest pioment” and that encroachments not so far removed as to permit the city work to commence by July first would be removed by the city at the expense of the owner. Clearly in this situation plaintiff had the right to do exactly what it appears to have done, namely, assume that litigation would be fruitless and proceed at once to remove the incumbrance itself and thereby avoid the apprehended expense and damage due from a removal by the city.

There should be judgment for the defendant, with costs.

Ingbaeam, P. J., McLaughlin, Laughlin and Dowling, JJ.-, concurred.

Judgment ordered for defendant, with costs. Order to be settled on notice.  