
    JAMES HENDERSON, Respondent, v. CHARLES ARBUCKLE, Appellant.
    
      Landlord and Tenant—Meter charges for Croton Water—Construction of covenant in lease.
    
    The payment by the tenant of meter charges for water supplied to the premises, which accrued prior to the making of the lease, and which áre, under the statute, a lien on the land and not a personal liability of the consumer, furnishes no defense to an action for rent of the premises ; there being no proof of any liability for such charges on the part of the landlord, or of a breach of any of his covenants, or of any duty or obligation resting upon him, in that regard.
    
      A fortiori, the payment of such charges by the tenant does not furnish a defense to an action for rent, where the lease, which commenced January 1, 1882, contains a covenant by the tenant to pay “ all rent or charges which is or may be assessed or imposed on said premises for Croton water on or before the 1st day of August, 1882.”
    Such a covenant embraces all rents or charges for Croton water existing against the demised premises at the time of the commencement of the lease.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided December 30, 1886.
    Appeal from judgment entered upon a verdict directed in favor of the plaintiff.
    The facts appear in the opinion.
    
      
      W. H. Townley, for appellant:
    I. A tenant obliged to pay a tax which the landlord was, by the terms of the lease or otherwise, bound to pay, may recover it back by action, or retain it from rent due or accruing (Garner v. Hannah, 6 Duer, 262, 1 R. S. 6th ed., p. 985, § 4). “ Where the tenant pays, in behalf of the landlord, sums which it was the landlord’s duty to pay, and which were charged upon the land, so that the failure to pay them would prevent the tenant’s possible possession of the property, the tenant is considered as. authorized by the landlord to make such payments, and treat the same as having been made in satisfaction, or part satisfaction, of the rent” (McAdam's Landlord and Tenant, 162). This extra water-meter rent or tax was a charge upon the land (Moffat v. Henderson, 50 Super. Ct. 211). In the absence of a covenant to pay, or of circumstances raising an implied promise on his part in favor of the lessor, a lessee is not bound to pay the regular or extra assessment rate for Croton water in the city of New York, or any other tax upon the premises (Moffat v. Henderson, supra).
    
    II. It is submitted that the clause in question only required the tenant to pay all rent or charge imposed upon the premises during the term of lease. It is conceded that Mr. Warmcastle did do this, (a) It is evident that a past-due water rent was not in the contemplation of the parties when they signed the lease. The tenant first knew of it when the water was cut off in February, 1882, and its full extent he did not know until he paid the bills. Henderson himself testifies that he did not require Warmcastle to pay these bills, and it appears that he made no claim that Warmcastle was obliged to pay them. (6) It has never been held that the expression “ all rent or charge which is or may be assessed or imposed,” &c., relates to debts, charges or taxes past due at the time the lease is made. Its universal acceptance is that of an obligation assumed by the t'nant for the period of his lease, fulfilled when he settles for all taxes which grow due therein. It has no retroactive effect, compelling the tenant to ascertain and defray all taxes and charges in arrears at the time he hires the property. It would be a great injustice if it were held retroactive, (c) If the intention of the parties was that the tenant should pay, as part of the rent, what was practically the debt of another, the contract should, by a proper employment of words, have so stated.
    
      James Henderson, respondent in propria persona, and S. Jones, of counsel:
    I. Defendant claims that Warmcastle was compelled by threats of the Department of Public Works to cut off the water to pay this sum, because, as he claims, a supply of water was necessary for the business Warmcastle carried on upon the demised premises. 1st. It does not appear that it was necessary that the water to be used in that business should be supplied by the Department of Public Works. 2d. There is no law, and there is no regulation of the department in evidence which authorizes the refusal to supply water to an occupant of premises because water bills accrued before he became the occupant, remained unpaid. Such unpaid bills are secured by being a lien on the fee of the premises. His payment, therefore, was voluntary.
    H. It nowhere appears that Henderson had any connection with the premises during the time when these bills accrued, or that he was obligated or bound to pay them. He did not covenant with Warmcastle to pay them, nor did he covenant with him that he should have Croton water supplied to him during the demised term. There is, therefore, no breach of any covenant entered into by Henderson, or of any duty or obligation resting on him.
    III. As between landlord and tenant (in the absence of express covenant), the landlord is bound to indemnify the tenant against only such charges for taxes and ground rent which he himself is bound to pay to the party in whose favor the charge exists.
    IV. For the reason stated in the second point, the provisions of § 4, Title 5, Chap. 13, Part 1 of R. S., have no application.
    V. Meter rents or charges are not charges on the consumer personally, but are taxes on the land (Moffat v. Henderson, 50 Super. Ct. 211).
    VI. Warmcastle by his lease covenanted to pay these rents.
    He covenanted and agreed to pay “ all rent and charges which is, or may be assessed or imposed upon the said premises for the Croton water.” This language necessarily involves an obligation to pay rent or charges then imposed; otherwise no force can be given to the words “ which is.”
   By the Court.—Freedman, J.

This action was brought to recover §203, and interest, as a balance due for rent on a lease made by Henderson, the plaintiff, to one Warmcastle, on which lease the defendant Arbuckle had become surety for the payment of the rent and the performance of the covenants to be performed by Warmcastle.

Arbuckle defends upon the ground that Warmcastle paid that sum to the Department of Public Works for meter charges for water supplied to the premises by the corporation of the city of New York for business purposes, prior to the commencement of the lease.

The sole question presented by the appeal is whether such payment is available to Arbuckle as a defense to the action.

The meter charges referred" to accrued previous to the making of the lease and were for water consumed by a former tenant of the plaintiff.

Such meter charges, or extra water rents as they are frequently called, are, since the statutes of 1870 and 1873, taxes on the land, and the consumer of the water covered by them is not personally liable for them (Moffat v. Henderson, 50 Super. Ct. 211).

Nor is there any evidence in the case that the plaintiff, during the time for which these charges accrued, had such a connection with the use of the said water, that he became personally bound to pay.

In his lease to Warmcastle the plaintiff did not covenant to pay them, nor did he covenant that the premises which consisted of stables, were free and clear from any such charge. So he did not covenant that Warmcastle should have Croton water supplied to him during the demised term. There is therefore no breach of any covenant entered into by the plaintiff, or of any duty or obligation resting upon him, and consequently the case does not fall within the provision of the statute (1 R. S. 6th ed.,p. 985, § 4), under which a tenant who was compelled to pay a tax which any other person by agreement or otherwise ought to have laid, is entitled to recover back the amount or to retain the amount from any rent due or accruing from him to such person for the land so taxed.

On the contrary, in the lease which commenced January 1, 1882, Warmcastle covenanted to pay “all rent or charges which is or may be assessed or imposed upon the said premises for the Croton water on or before the first day of August, 1882.” This covered much more than the covenant to pay “ the regular annual rent or charge,” considered in Moffat v. Henderson, (supra), or the covenant to pay “all ordinary yearly taxes, considered in Garner v. Hannah (6 Duer, 262). It embraced all rents or charges for Croton water existing against the demised premises at the time of the commencement of the lease.

For the reasons stated, Warmcastle had no right to look to the plaintiff for the payment of the said charges, and the defendant as surety stands in no better position.

The payment made by Warmcastle to the Department of Public Works was, under the circumstances of this case, a voluntary one as against the plaintiff. Such a payment can no more be used as the basis of a defense to a claim which the plaintiff is entitled to enforce, than it can be used to sustain an action to recover back the money.

There was no error in the proceedings at the trial, and a verdict was properly directed for the plaintiff.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., and Ingraham, J., concurred.  