
    Forbes J. Hennessy, Appellant, v. Bartholomew F. Kenney, Respondent.
    (City Court of New York, General Term,
    May, 1897.)
    lease — Provision as to renewal — Pro rata.
    A sublease contained a provision for a renewal at the same rent provided the superior landlord did not" increase the rent paid by the lessor, and that in case he did so the lessee should pay pro rata. Held, that the term “ pro rata ” meant in the proportion that the rent which the lessee previously paid to the • lessor bore to the rent previously paid by the lessor to the superior landlord. •
    Appeal from judgment dismissing the complaint.
    John Delahunty, for appellant.
    Whitehead & Titus, for respondent.
   Schuchman, J.

This is an appeal from a judgment of dismissal of the plaintiff’s complaint.

The action was brought to recover the balance of rent due upon certain premises, situated on the northeast "comer of Greenwich and Houston streets, in the city of New York, known as No. 585. Greenwich street, in said city.

On the 1st day of May, 1894, a lease was made of the store of_ said- premises between Catherine Bradley, the landlord, and the defendant, the tenant, for the term of two years, from the 1st day, of. May, 1894, at the yearly rent, of the sum of $900 for the first, year, and $1,200 for the second year, “ with renewal for the-term of five years more at the annual rent hereinbefore mentioned,, to-, wit, the sum of twelve hundred dollars per year, provided always that the Trinity Corporation shall not increase the present rent; paid by the party of the first part (namely Catherine Bradley), then and in- that case the' party of the second part (the defendant-respondent) shall pay “ pro rata.”

Catherine Bradley was a tenant of the Trinity Corporation as to the land; she owned the building.

Her , lease from 'the Trinity Corporation expired on the 1st day .of May, 1896.

The rent reserved in that lease was $1,5.00 per year. On the 28th day of April, 1896, the Trinity Corporation -renewed, the, lease for the further term of twenty-one years at an annual rent of $2,200 per year. . •

This lease was granted to Ellen M. Hennessy as executrix of the last will arid testament of Catherine Bradley, deceased. Thereafter, Ellen M. Hennessy, as such executrix, assigned said lease to the plaintiff-appellant.

On May’l, 1896, the defendant-respondent elected to take advantage of the privilege of renewal contained in the-lease, to him . from Catherine Bradley, and,. thereupon, the plaintiff tendered to him a lease in terms the same as the lease to him from Catherine Bradley, except as to the rent, which is put at the sum of $1,760 per year, with the privilege of renewal for the further term of five years more.

The defendant declined to accept that lease on the ground-that he claimed that the rent should not be $1,760 per year, but only $1,329.63 per year.

The defendant has paid from May 1, 1896, to the 1st day of November, 1896, at the rate of $1,329.63, and he is sued for the difference between that and the $1,760 per year, for the same period.

The sole question- of inquiry is, what construction is to be put upon the term “ pro rata ” applied in the lease. - ■

Plaintiff maintains that the term “pro rata” means at the proportion of any increase in the rent which plaintiff was paying before to the Trinity Corporation to-wit: Pifteen hundred dollars, with the rent that defendant was paying, $1,200, being twelve-fifteenths, and that twelve-fifteenths of the $700 increased rent iis $560, added to the $1,200, makes the renewal rental, $1,760.

Defendant maintains, and the court held with him, that the term “ pro rata ” means, at the proportion of any increase in the rent as defendant’s rental is dr bears to the net rental of the whole premises, and dismissed the plaintiff’s complaint.

In this we think the court erred,

The contracting parties,to the lease are bound by its stipulations, which must be construed by the natural import of the words' employed, provided they are definite and certain.

They stipulated that the renewal rent shall be $1,200, and in case of an increase in the rent by the Trinity Corporation, the defendant shall pay “ pro rata” that means in proportion to the rent the defendant paid before to the plaintiff with the rent the plaintiff before paid to the Trinity Corporation, to-wit: twelve-fifteenths.

There is nothing uncertain, indefinite or conjectural in this.

The defendant made his bargain in unmistakable terms and he must stand by it.

Defendant’s contention, that such a construction would make the contract unreasonable and place the defendant wholly at the mercy" of the plaintiff, as held in Russell v. Allerton, 108 N. Y. 288, does not avail, because that rule is only applicable where there is uncertainty or doubt as to the meaning of words or phrases used in a contract.”

Judgment reversed and a new trial granted, with costs to the appellant to abide the event.

Conlan and O’Dwyer, JJ., concur.

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