
    Jennie Loewenthal, Appellant, v. Edward Michels, Respondent.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Landlord and tenant — Rights, duties and liabilities in regard to premises — Incumbrances, taxes and assessments — Covenants and agreements as tó taxes and assessments — Water rents — Regular annual rent or charge — Meter rates.
    A covenant, by a tenant of premises in the city of New York, to pay “ the regular annual rent or charge ” assessed or imposed upon the premises, according to law, for water rents, obligates him to pay the charges for water consumed as shown by the water meter installed in the premises.
    Appeal from a judgment, rendered in favor of the defendant in the Municipal Court of the city of Mew York, fifth district, borough of Manhattan, for the sum of twenty-two dollars and forty-one cents costs.
    
      Edmund Bittiner, for appellant.
    Fitch, Mott & Grant (Albert S. Parmelee, of counsel), for respondent.
   Greenbaum, J.

The facts in this action are undisputed. The defendant was lessee of premises known as Nos. 102, 104 and 106 East Eleventh street in the borough of Manhattan, under a written lease, dated October 24, 1904, made with the plaintiff as landlord. The lease was partly written and partly printed on a printed form which has been in common vogue for many years in this city, containing a printed covenant which obligated the tenant “to pay the regular annual rent or charge which is or may be assessed or imposed according to law upon the said premises for the Groton water rent when due in each year during the term, and if not so paid, the same shall be added to the month’s rent then due.”

The defendant entered into possession of the said premises under the lease and continued in occupancy for two years and six months, the full term of the lease. There were imposed upon said premises during said term certain meter charges for water aggregating the sum of $202.96.

This action was brought by the landlord to recover said sum. The trial justice gave judgment for the defendant and the question involved upon this appeal involves the interpretation of the above-quoted covenant.

The respondent relies upon the case of Moffat v. Henderson, 50 N. Y. Super. Ct. 211, as authority for the proposition that a covenant like the one in the lease under discussion obligates the tenant only to the payment of the “ regular water rents ” in contradistinction from the “ extra charges ” imposed upon the premises.

The Moffat case was decided in 1884, before the charter provisions now applicable to water rates or charges had been passed. A perusal of the case of Hill v. Thompson, 50 N. Y. Super. Ct. 165, and to which special reference is made in the Moffat case at pages 216 and 217, will disclose that the statutes applicable to the facts in that case were section 73 of chapter 383 of the Laws of 1870 and section 13 of chapter 335 of the Laws of 1873. Mr. Justice Freedman wrote the opinion of the General Term of the Superior Court in the Moffat case and the opinion of the Special Term in the Hill case which was practically adopted by the General Term, upon affirmance on appeal.

Under the state of the law as it then was, the court held in the Moffat case that the parties must have covenanted with reference to the fact “ that both the regular and extra water rent or charge might become liens on the land ” and that it was only intended between the parties to obligate the tenant to pay the “ regular rates ” as contradistinguished from the “ extra rates.” A comparison between the acts in force when the foregoing cases were decided and the existing provisions of law as embodied in the Greater Hew York charter, sections 473 and 475, as amended by the Laws of 1902, chapter 509, and the Laws of 1904, chapter 600, will show most radical differences between them. Under the former legislation there was a regular water rate for certain classes of enumerated buildings and a provision for imposing “ extra rates ” by the use of water meters to be placed in buildings, in the exercise of the discretion of the commissioners of public works.

Mr. Justice Freedman in Hill v. Thompson, supra, discussed the effect of these laws and, at pages 171 and 172, speaking of the use of water meters, said: “Ho deduction will be made for the regular rate, if the quantity of water consumed, as shown by the meter, should amount, at meter rates, to a smaller rate. But if it should amount to a larger sum, the regular rate will be deducted.”

A discussion of the “ regular rates ” and “ extra rates ” will also be found at page 167.

The present law, section 473 of the charter, confers upon the board of aldermen the power “to fix and establish a uniform scale of rents and charges for supplying water ” and also specifically provides “ all extra charges for water shall be deemed to be included in the regular rents which shall become a charge and lien upon the buildings, 'etc. * * * In all such cases in which a water meter may have been or shall he placed in any building as provided in this act, except as hereinafter provided, the charge for water shall be determined only by the quantity of water actually used as shown by said meters.”

Under the existing law, therefore, there is no such thing as a “ regular rent or charge ” to which is superadded “ extra chargebut, in all cases where meters are placed in buildings, the water charge shall be determined “ only by the quantity of water actually used as shown by the meters,” and these “ extra charges ” shall “ be deemed included in the regular rents.”

This provision has been construed in the case of Healy v. City of New York, 90 App. Div. 170, 174, 175, as regulating the method now in operation with reference to charges for water furnished by the city of New York to buildings in which a water meter has been installed.

In Bristol v. Hammacher, 30 Mise. Rep. 426, decided in 1900, Mr. Justice Freedman, writing, recognizes that a covenant in a lease similar to the one in this case obligates the tenant to pay such meter charges for the use of water as are “imposed according to law” upon the demised premises; and he makes no reference to his former decisions in 50 H. Y. Super. Ot. 165, 211.

In the case at bar it is in evidence that a water meter was, during the full term of the lease, installed in the premises and that the water charges were exclusively those fixed by the meters, no rent or charge having been imposed by the city on the basis of the uniform regular water rate for certain kinds of buildings having no meters.

Construing the covenant in question in the light of the statutes now in force and of the conditions existing in the premises with respect to the method of water supply provided for them, there cannot be the slightest doubt but that the intention of the parties must have been that the meter charges were to be considered the regular meter rents or charges to be paid by the tenant.

To construe the covenant as the tenant render it nugatory and meaningless and to hold that the parties intended to give no effect to it.

The judgment must be reversed and, as the conclusions cannot be changed upon a new trial, judgment is directed for the plaintiff, with costs in this court and the court below.

Gildersleeve and Giegerich, JJ., concur.

Judgment reversed, and judgment directed for plaintiff, with costs in this court and the court below.  