
    Bennett Rose et al., Respondents, v. Harry Schumer, Appellant.
   Appeal, by permission of the Appellate Term of the Supreme Court in the first judicial department, from a determination of said court, entered May 15, 1952, which modified a final order of the Municipal Court of the City of New York, Borough of Manhattan, Third District, in favor of landlords, by increasing the amount of landlords’ recovery.

Per Curiam.

The printed lease does not sustain the landlords’ claim for increased fire insurance premiums as rent. Under paragraph 2 ” of the lease, the tenant was permitted to use the building for storage, warehouse and other commercial purposes. As was his right, the tenant occupied the building for storage of theatrical scenery.

By paragraph 8 ” of the agreement, the tenant agreed to comply with the requirements of the board of fire underwriters, and covenanted not to do anything to increase the fire insurance rate for the building. If by reason of his failure to observe his agreement, the insurance rate should be “ higher than it otherwise would be ” he agreed to pay the increase. The phrase “ higher than it otherwise would be ” can only mean higher than the rate for the authorized occupancy. Any other interpretation would impose a penalty on the tenant simply because of his occupancy of the building. The court should endeavor to give a construction most equitable to both parties and not a construction which would give one of them an unreasonable advantage over the other (Fleischman v. Furgueson, 223 N. Y. 235; Schoellkopf v. Coatsworth, 166 id. 77; Sanford v. Brown Bros. Co., 208 id. 90).” (Columbus Spa v. Star Co., 216 App. Div. 218, 221.)

The order of the Appellate Term and the final order of the Municipal Court should be reversed, with costs to appellant and judgment directed for the tenant dismissing the petition, with costs.

Dore, J. P., Cohn, Callahan, Van Voorhis and Breitel, JJ., concur.

Determination of the Appellate Term and final order of the Municipal Court unanimously reversed, with costs to the appellant, and judgment is directed to be entered in favor of the tenant dismissing the petition herein, with costs. Settle order on notice. [See 281 App. Div. 659.]  