
    J. Gray Estey & Company, Respondent, v. Henry Corn, Appellant.
    (Supreme Court, Appellate Term,
    January, 1905.)
    I,ease — Repairs to elevator — Non-liability of landlord.
    Where a freight elevator, serviceable only for the business of a particular tenant, is exclusively demised under a lease wherein he covenanted to make repairs, requisite to preserve the premises in good order and condition, without expense to the landlord, a further covenant to pay rent “ which is to include * * * elevator service in common with the other tenants ”, may not be enlarged by construction to make the landlord liable for repairs to the elevator made by the tenant, it appearing that in the building were two other elevators, one of which was a freight elevator usable in common by all the tenants.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, third district, borough of Manhattan.
    George Hahn, for appellant.
    Morris Putnam Stevens, for respondent
   MacLean, J.

The plaintiff seeks from the defendant, its lessor, to recover for outlay in repairing part of the premises leased and necessary to the conduct of the business of the plaintiff * * * a freight elevator from the basement floor to the surface of the sidewalk.” To meet the well-settled doctrine that without an express covenant to that effect by the lessor he is neither bound to repair the demised premises himself nor to pay for repairs made by the tenant (Witty v. Matthews, 52 N. Y. 512), the plaintiff relies upon a clause in its lease wherein it covenanted “ to pay the annual rent of $5,500 which is to include steam heat and elevator service in common with the other tenants.” As indicated in the above extract from the complaint, there was no use in common with the other tenants of the freight elevator in question. It was serviceable only for the business of the plaintiff; was manned and managed apart from the rest by it alone, save as to the electric current, which it turned off or on at will, and was exclusively demised to it under the lease wherein it covenanted “ to make repairs (not made necessary by fire) requisite to preserve the premises in good order and condition without expense to the lessor.” As a covenant to repair is not implied by law, an express covenant will not be enlarged by construction (52 N. Y. 512, 515) which the covenant relied upon would need if extended to cover the claim of the plaintiff. What the clause invoked really applied to appeared when it was shown upon the trial that there were in the building two other elevators usable in common by the other tenants, and that one of them was a freight elevator starting from the basement at a door communicating with the premises of the plaintiff, who used it upon occasion both when its own was in order and when it was not. The defendant landlord was not bound either by covenant express or implied to make the repairs. The plaintiff not only was under the implied obligations of tenants respecting repairs, but also had undertaken by express covenant to make the repairs without expense to the lessor.

Scott and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  