
    Frank Phelps, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Municipal coefokations—Lease—Repairs.
    Plaintiff leased a wharf from the city for a term of years, the lease containing covenants that the city would prior to its commencement or as soon after as practicable make such repairs to the wharf as the dock commissioners should consider necessary to put it in suitable condition for use, but that no claim that it was not in suitable condition should at any time be made or allowed, and also that plaintiff would keep the wharf in repair. At the conclusion of the term plaintiff took a new lease containing the same covenants. He had kept the premises in repair, but at the commencement of the second term they had, by reason of age, become unsuitable for service. A dispute arose between plaintiff and the dock commissioners as to who should make the repairs, the commissioners expressly stating that they were necessary. Held, that the second lease was a new grant and its covenants are to be read as though it was the first inception of the relation between the parties, and that plaintiff was entitled to recover for a breach of the covenant to make such necessary repairs as to put the wharf in condition for use.
    (IrreBAHAM, J., dissents.)
    Appeal from judgment of the special term.
    
      S. J. Cowen, for app’lt; T. E. Rochfort, for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff to recover damages for an alleged breach of a covenant upon the part of the defendant to repair the pier which the defendant had leased to plaintiff and to reform the lease by striking out the stipulation which seemed to prevent the plaintiff from raising the question of its breach.

The action has been heretofore tried and judgment entered denying plaintiff’s prayer to reform the lease but awarding damages for the defendant’s breach of the covenant to repair. Upon appeal to the general term, the general term reversed that part of the judgment awarding damages and ordered a new trial. The same issues were retried and the court below held that the additional evidence offered supplied the deficiency which the general term had declared to be fatal to the first judgment, and judgment was again awarded to the plaintiff for the full amount of the claim.

It appeared that the plaintiff was a lessee of a pier of the defendant under a written lease running from May 1, 1882, to 1887. This lease contained a covenant upon the part of the city as follows:

“ And the parties of the first part promise and agree that they will, prior to the commencement of the aforesaid term of years, or as soon after such commencement as shall be found practicable, make such repairs to the above described wharf property as the said board of commissioners may consider necessary to put such wharf property in a 'suitable condition for service during the aforesaid term. And the parties hereto promise, agree and understand that no claim that the said wharf property is not, or was not at the time of the commencement of said term, in a suitable condition for the uses and purposes hereinbefore mentioned, shall or will, at any time, be made or allowed.”

And a covenant upon the part of the plaintiff as follows :

“ And the said party of the second part does further covenant, promise and agree that he will at' all times during said term, except as hereinbefore agreed, put, keep, and maintain all the said wharf property and every part thereof and the structures thereon in good and sufficient repair and condition, and will well and snffi. ciently dredge, and keep dredged, the slip or slips adjacent thereto; and that all such repairs, rebuilding and dredging during said term shall be made and done at the sole cost, charge and expense of the said party of the second part. And in case the said party of the second part shall make default herein, and shall neglect or refuse to make such repairs, or do such dredging, for the space of ten days after notice so to do shall have been given by the said department of docks, or any proper officer, agent or employee thereof, or of said parties of the first part, then this grant and everything herein contained shall be forfeited, and the party of the second part will pay to the parties of the first part such damages as they may have sustained ;"or at their or its option, the said parties of the first part, or the said department, may make such repairs, or do such dredging, and the full cost and expense thereof shall and will be paid on demand by the said party of the second part to the said parties of the first part.”

And the covenant for renewal, as follows:

“ It is further understood and agreed that if, at any time, not less than ninety days before the expiration of the abovementioned term of five years, the party of the second part shall give the parties of the first part, their proper department or officer, notice in writing of his desire to have the present grant renewed, then, and in that case, the said parties of the first part will again grant unto the said party of the second part, for a further term of five years, commencing at the expiration of the present term, all the wharf-age which may become due for the use and occupation of said pier, such renewed grant to contain like covenants as this present one, except the covenant of renewal and except that the rent or compensation shall be eleven thousand dollars per annum, and the said wharf property is to be used and occupied during said term only for the purposes of mooring thereto vessels engaged in commerce and loading and discharging the same.”

Prior to' the expiration of the term contained in this lease, in pursuance of the covenant for renewal, the plaintiff gave the notice entitling him thereto, and subsequently a renewal lease was executed and delivered, containing the same covenants in respect to repairs which were contained in the original lease.

It was admitted upon the trial that during the first term the plaintiff put, kept and maintained the premises and every part thereof in good and sufficient repair and condition, but that notwithstanding such repairs, the pier and bulkhead, being old, were not, on the 1st of May, 1887, in suitable condition for service for the second term; and that such a claim was made by the plaintiff at the time of the execution of the renewal lease and has ever since been made. It was further admitted that the plaintiff had expended the amount recovered for repairs in and by which said wharf was placed in a suitable condition for service during the second term; and that said sum was a fair and reasonable amount to be so expended.

Upon the hearing before the general term upon the previous appeal, it was held that the defendant could not be made liable for the amount thus expended, because it did not appear what the board of dock commissioners considered necessary repairs to put such wharf property in suitable condition for service during the term; and the question presented upon this appeal is whether upon the new trial this objection was obviated.

Various other points are raised which it is necessary only briefly to consider, and they are as follows: That because only monetary damages were given, the court should have dismissed the complaint, the action having been brought in equity for a reformation of the lease and for damages.

This point is clearly not well taken. The plaintiff having shown himself entitled to common law relief the court sent him to the circuit to have such right tried before a jury; and a jury trial being waived, the issues were tried before the conrt without a jury and the defendant, therefore, sustained no injury thereby.

The next claim presented is that there was but one lease, and that the first lease and the option read together constituted the wliole agreement, and that the covenant in regard to repairs by the defendant related only to the commencement of the original lease. We think there is clear error in this proposition. It certainly was not so considered by the parties, because a renewal lease was executed, and the option to be exercised in pursuance of the covenant contained in the original lease was an option to demand a new grant commencing at the expiration of the term of the first lease, and the provision for renewal contained a statement in detail as to what covenants the renewal lease should contain. It was clearly a new grant, and all the covenants are to be read as though it was the first inception of the relation between the parties.

The only question, therefore, remaining to be considered is whether the evidence showed that the dock commissioners determined that certain repairs were necessary to put the wharf property in suitable condition for service at the commencement of the terya.

It appears from the stipulation- entered into between the parties that on the 1st of May, 1887, said pier and bulkhead were not in a suitable condition for service for the second five years, notwithstanding the repairs put upon them by the plaintiff, because of its old and infirm condition.

It further appears from the evidence that a controversy sprang up prior to the 1st May, 1887, the time of the commencement of the new lease between the dock commissioners and the plaintiff, as to who should make the repairs necessary to put the wharf property in suitable condition for use, the dock commissioners claiming that such liability rested upon the plaintiff and the plaintiff claiming that it rested upon the dock department, and in this correspondence the dock department expressly stated these repairs to be necessary and as recommended by the engineer in chief of their department.

These facts, taken in connection with the stipulation that these repairs were necessary to put the wharf in a suitable condition for service, would seem to show that the dock commissioners determined that these repairs were necessary, and supplied the omission which existed in the case when it was before the general term on the previous occasion.

We are, therefore, of opinion that the judgment should be .affirmed, with costs.

Daniels, J.

It is clearly proved that the board of dock commissioners did consider the repairs to be necessary which were made by the plaintiff. It is agreed that he had made all the repairs which he became bound to make under the first lease. And it therefore follows that the repairs in controversy had become necessary to put the wharf property in a suitable condition for service during the term created by the second leasa These repairs the dock commissioners bound themselves to make, which they refused to do, and directed the plaintiff to make them. In making them after that, he did no more than to perform the obligation of the commissioners, for which he became entitled to compensation from the defendant. He did no more than the commissioners concluded should be done, and by which the obligation was created that the commissioners should dox it. He performed their obligation under their direction. And that entitled him to the compensation for doing their work which has been secured by the verdict.

I therefore conclude that the judgment should be affirmed.

Ingraham, J.

(dissenting.)—The liability of the city for the amount expended by plaintiff in repairs to the pier leased by him depends upon the obligation binding the city, contained in the lease.

It is settled that if there is no such covenant in the lease that the defendant is not liable for the repairs made by plaintiff. See Hartford & N. Y. Steamboat Co. v. The Mayor, 78 N. Y., 1.

By the lease the parties of the first part (the defendant) agreed that they would prior to the commencement of the term demised or as soon after such commencement as should be found practicable, make such repairs to the wharf property as the board of commissioners should consider necessary to put such property in. suitable condition for service during the term demised.

If that covenant stood alone, undoubtedly the plaintiff would be entitled to recover for any damage sustained by reason of the failure of the city or the commissioners to make such repairs.

There is however added to this covenant a provision that the “ parties hereto promise, agree and understand that no claim that the said wharf property is not or was not at the time of the commencement of said term in a suitable condition for the use and purposes mentioned in the lease, shall or will at any time be made or allowed.’’

Tile only construction that can be given to this covenant is that the repairs to be made were to rest entirely within the discretion of the dock commissioners, and that the plaintiff was to make no ' claim against them, or against the city, for any failure on their part to observe the covenant that they had made.

The commissioners were public officers acting on behalf of the municipal corporation, and it is not improbable that the plaintiff was willing to depend upon them to have the repairs made without insisting upon a covenant on behalf of the city that he could enforce, and thus agree that no claim should be made for a failure to make any repairs or to put the wharf property in a suitable condition for use during the term.

This seems to be the only construction that will give any effect to the provision in question.

If the city was to be liable for the failure of the dock commissioners to make such repairs, this proviso is absolutely meaningless.

We should not consider whether or not such covenant was a provident one for the plaintiff to make. All that we have to do is to enforce the agreement that was actually made, and the defendant can only be liable for a breach of some express obligation made on its behalf by officers acting under authority to bind them. Here the commissioners agree that they would put the wharf properly in repair, but the plaintiff agreed that he would make no claim that said wharf property was not put in repair, and it seems to me that having made such agreement, he is now precluded from suing the city because the wharf property was not put in such repair.

I do not understand that this question was passed on by this court on the former appeal.

There the judgment was reversed because it did not appear that the dock commissioners considered the repairs made by plaintiff as necessary, and the question of liability of the defendant under the covenant does not seem to have been discussed in the opinion.

I think, therefore, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.  