
    THE CITY OF NEW YORK v. THE UNITED STATES
    [No. 49329.
    Decided June 5, 1951]
    
      
      Mr. Alfred Belter for plaintiff. Messrs. John P. McGrath and Marry E. O’Donnell were on the briefs.
    
      Mr. Herbert Pittle, with whom was Mr. Assistant Attorney General A. Devitt Vanech, for defendant.
    
      Mr. Herbert E. Gyles, Trial Commissioner.
   JONES, Chief Judge,

delivered the opinion of the court:

On November 12,1941 the plaintiff leased to the defendant approximately 225,000 square feet of space on the City Pier in Brooklyn, New York. The agreement was in writing and provided for a term commencing November 16, 1941 and ending June 30,1942. The annual rental was to be $119,000.

This lease agreement was renewed from year to year by extensions and renewals until October 15,1946. Some slight changes were made in the property included. After November 16, 1942 the annual rental rate was $107,000. It was stipulated in the lease contract that the property was leased and the rental based on an “as is” basis. The pier was used by the defendant primarily for ordinary pier purposes and also for storage.

The premises were returned to the custody of the plaintiff on October 15,1946.

The plaintiff sues for $142,740, which it claims is the amount necessary to repair and restore the property. The defendant admits liability to the extent of $10,115.

The evidence shows that it was the general practice of the City of New York in leasing its piers to insert in its permit contracts a provision requiring the lessee to make all repairs. However, as a general rule, the defendant, in leasing piers from plaintiff, refused to yield to this contention of the city and refused to agree to make such repairs. Neither the leases nor the renewal agreements in this case contain any provision whatever with respect to repairs during the period of occupancy by the United States.

The evidence is that at the time of the commencement of occupancy the piers and structures were in tenantable condition for the purposes for which leased, but the actual detailed physical condition of the pier, especially the under-structure, at the date of the beginning of the lease, is not shown.

The' pier was built in 1915. Its structure consisted of wooden piles, cross clamps and side-cap rangers with a concrete deck. It was supported by 6,800 wooden piles. A one-story shed having 166 overhead doors and four rolling shutter doors covered most of the deck.

The piles are generally considered good for twenty years, though they may last for a much longer period of time. It was estimated that about 25 percent of the piling under the pier had been replaced during the years after the pier was built in 1915.

About nine months prior to the time of the final ending of the lease period, engineers employed by the plaintiff completed a survey of the condition of the pier. A copy of that survey was brought up to date by simply dating the report October 4, 1946. Soon thereafter a copy was delivered to representatives of the Navy Department with the understanding that, if the condition noted in the report still obtained, it would be accepted as a condition survey. The defendant made an inspection and it was agreed by representatives of both parties that the condition of the pier as set forth in detail in such report represented the condition of the premises as of October 1946. No attempt was made at that time by the parties to determine liability for any damages. The details of that report are set put in Finding 22.

A brief survey was made by two of defendant’s structural engineers in the early part of 1947. One of them reported that the piling was in an advanced state of rot, but he did not report as to details.

There is a conflict in the testimony as to whether or not the cost of repairs, as determined by plaintiff’s engineers, was agreed to by defendant’s representatives, the plaintiff claiming the affirmative and the defendant denying that there were any agreements as to the cost estimates set out in the report. These figures are set out in detail in Finding 27 and total $142,740. The items on which defendant admits liability are set out in Finding 28. The total of such items is $10,115.

The permit contract which was signed by the company which had this property under lease for a number of years prior to defendant’s occupancy contained the following provision:

And the said party of the second part hereby covenants and agrees that it will, at its own sole cost and expense, at all times during the continuance of this license or permit, maintain the superstructure of said wharf property and the structures thereon, including decking, sheathing, backing logs, fender system, clusters or other fender piles, vertical sheathing and mooring posts or bitts, in good and sufficient repair and condition and well painted.

This provision was not included in the lease contract signed by defendant and plaintiff in the instant case.

The plaintiff contends that under the New York law the tenant, in the absence of a covenant to the contrary, must make all repairs to the leased property, and that it was customary for tenants in New York Harbor to bear the expense of making all repairs to such structures. It cites cases which do not bear out that contention, but upon the whole seem to apply the principles laid down in Taylor’s Landlord and Tenant (7th Ed., p. 292), from which we quote:

Independently of any express agreement on the part of a tenant, and in the absence of the landlord’s undertaking to keep the premises in repair, the law imposes upon every tenant, whether for life or for years, an obligation to treat the premises in such a manner, that no substantial injury shall be done to them; and so, that they may revert to the lessor at the end of the term, unimpaired by any willful or negligent conduct on his part. A tenant for years, or from year to year, must therefore keep the premises wind and water tight; and is bound to make fair and tenantable repairs, such as the keeping of fences in order, or replacing doors and windows that are broken, during his occupation. If it is a furnished house, he must take care of the furniture, and leave it with the linen, etc., clean and in good order. But he is not bound to rebuild premises which have accidentally become ruinous during his occupation, unless he is under a covenant to rebuild. Neither is he liable for the ordinary wear and tear of the premises; nor answerable if they are accidentally burnt down; nor bound to rebuild a fallen chimney; or replace doors and sashes worn out by time; to put a new roof on the building; or to make similar substantial and lasting repairs, such as are usually called general repairs. Nor is he bound to do painting, whitewashing, or papering, which are mere matters of ornament (unless they are necessary to preserve exposed timber from decay), even though he be under a covenant to leave the premises “in good and sufficient repair, order, and condition.”

The defendant takes the position that in the absence of an express agreement the tenant is not obligated to repair generally, his implied obligation being only to make such repairs as are necessary to keep the property in tenantable condition, but not to make more than ordinary repairs; that it does not require him to make extensive, substantial, or lasting repairs and replacements. It claims that the New York law does not apply to contracts with the Government, but that if it be held to apply, it is in fact substantially the same as the general law on that subject.

Both sides cite Suydam v. Jackson, 54 N. Y. 450.

The plaintiff quotes from page 458 the following:

At common law the lessor was, without express covenant to that effect, under no obligation to repair, and if the demised premises became, during the term, wholly untenantable by destruction thereof by fire, flood, tempest or otherwise; the lessee still remained liable for the rent unless exempted from such liability by some express covenant in his lease. * * * but the lessee was under an implied covenant, from his relation to his landlord, to make what are called “tenantable repairs.”

The defendant quotes from page 454 of the same opinion as follows:

The lessee was not bound to make substantial, lasting or general repairs, but only such ordinary repairs as were necessary to prevent waste and decay of the prem* ises. If a window in a dwelling should blow in, the tenant could not permit it to remain out and the storms to beat in and greatly injure the premises without liability for permissive waste; * * *.

From an examination of the authorities we have concluded that the New York law is not substantially different from the general law on this subject, to wit, that a non-convenanting tenant is liable for such repairs as are necessary to preserve the property but not for substantial repairs or rebuilding necessitated by the ordinary process of wear and tear. Later expressions from New York courts indicate, in fact, that it is not different. See May v. Gillis, 169 N. Y. 330; Herold v. Geroux, 71 N. Y. Supp. (2d) 848 (Sup. Ct. App. Term).

It has been repeatedly held by this and other courts that where the lease contract specifically requires the tenant to keep the premises in good repair the only obligation is to return the property in substantially the same condition as it was at the beginning of the tenancy, ordinary wear and tear excepted. Brooklyn Waterfront Terminal Corp. v. United States, 117 C. Cls. 62, 90 F. Supp. 943. Elizabeth Smith v. United States, 96 C. Cls. 326. These provisions which are normally included in rental contracts are the result of experiences and trade practices and are usually based on what are regarded as the normal obligations between lessor and lessee. In a number of the cases cited by both parties additional obligations are placed on the landlord or the tenant or both where additional obligations are spelled out. These special contract provisions, of course, may vary the requirements that are ordinarily placed upon the respective parties.

In this case there is no spelling out of the obligations as to who is to make the repairs or what repairs are to be made. We must examine the facts in the case as to what repairs are required to keep the property in tenantable condition. United States v. Bostwick, 94 U. S. 53. Manifestly, there would be no obligation to completely rebuild a pier much of .which had deteriorated considerably before the term of the lease began. On the other hand, there can be no doubt of the obligation to make such repairs as might be necessary to keep the property in tenantable condition and to prevent waste .and to compensate for any damages due to neglect and to prevent waste in excess of ordinary wear and tear.

During the period of the occupancy by the defendant a number of repairs and improvements were made by the defendant at its own cost and expense. These items are set out in detail in Finding 31. The total of such expenditures as set out in that finding is $82,757.25. The defendant abandoned all structures, alterations and improvements made by it when it surrendered the premises on October 18, 1946. During the period of occupancy the defendant kept a considerable force of technicians and laborers for the purpose of maintaining .and repairing this pier and other buildings which it controlled in that general area. During the period 1939 to 1941 the previous tenant had made repairs and replacements at a total cost of $141,000, but the company superintendent testified that this represented accumulated needs.

We have set out in detail in our Finding 29 our ultimate findings in respect to the various items claimed by the plaintiff. Except as otherwise indicated replacement and repair costs are determined as of the time of the termination of defendant’s occupancy.

Items Nos. 1 to I, inclusive

These items relate to replacements of the piles. Of the 6,800 piles that had been placed in the structure in 1915, 1,700 had been replaced prior to defendant’s occupancy. The average cost of such replacement was $86.15 per pile. However, these piles, with the exception of replacements, had been in service 27 years at the beginning of the defendant’s lease period and had, therefore, been in use longer than what was regarded as. the average life of wooden piling. We think, therefore, that the obligation of replacement generally should not be placed upon the defendant. Four of these piles had been broken during defendant’s occupancy, evidently by collision. The defendant should pay for replacement of these broken piles. The cost of such replacement was $344.60.

Items Nos. 5 to 8, inclusive

For the reasons stated in our findings, we do not regard the defendant as obligated to compensate for these items.

Item No. 9

This item covers the claim of $7,200 for renewal of folder cap material. Much of this was worn and rotting. There is no proof as to the length of time this condition had existed. There is evidence that about 100 linear feet had been broken, “evidently smashed.” The renewal cost of this 100 feet at that time would have been $480, which is allowed.

The defendant also admits liability for damaged fender caps in the amount of $1,000.

Item No. 10

The defendant admits liability for 50 linear feet of fender chock which were missing and which were required to be replaced. The amount for such replacement is $240.

Item No. 11

Under Item 11 the defendant admits liability for 9 single bitts which were required to be reset, the fair and reasonable cost of which is $810.

Item No. 12

Defendant admits liability for 10 damaged bitts, the reasonable cost of the renewal of which is $1,800.

Item No. 13

Under tins item plaintiff claims a total of $39,840 based upon a four percent maintenance per year. There were 166 of these shed doors. According to the evidence, 82 of these doors seemed to be in sound condition at the end of the lease period except for ordinary corrosion. Eighty-three doors needed repairs due to the fact that some of them jammed or were sprung or had broken weight chains and gears out of order. Other doors among the 88 needing more than ordinary repairs were blocked on account of a crib, or did not tilt. The reasonable cost of repairing the 83 doors which heeded repair by reason of defendant’s tenancy amounts to $19,920.

Item No. Ilf.

IjAder.this item plantiff claims 326 weather plates which it says were renewed at a cost of $3,260 or $10 each. The evidence clearly shows that the doors and plates were in good1 condition at the beginning of defendant’s tenancy. The fair and reasonable cost of repairs to the 326 plates was $2 per plate, a total of $652.

Item No. 15

Defendant admits liability for 3 cargo masts which were required to be renewed at $600 each, a total of $1,800.

Defendant also admits liability for 2 cargo masts which had to be realigned at $400 each, or a total of $800.

Item No. 17

The plaintiff claims $24,744 for painting the interior and exterior of the shed, a total of 412,400 square feet. The evidence is conflicting on this item, but the indications are that the paint was not in good shape at the time defendant began its occupancy. It did some painting. during this, period, and the weight of the evidence establishes that the paint was in about the same condition at the end as at the beginning of the tenancy period. We make no allowance for this item.

Item No. 18

Defendant admits liability for 100 square yards of asphalt pavement repaired at a cost of $300.

Item No. 19

Plaintiff claims the value of 750 square yards of office-linoleum which was replaced at a cost of $3.50 per square-yard, or a total of $2,625. During the period of its tenancy, however, the defendant replaced about 150 square yards of linoleum and the remaining part was in almost as good condition at the end of the lease period as it was at the beginning with the exception of ordinary wear and tear. The defendant admits liability for 25 percent of the claim based upon the-estimated damage caused by lines - in the linoleum which were left after -the removal of the partitions, or a total of $700. We regard this as a fair admission and find on this, item for the plaintiff in the sum of $700.

Item No. 20

Plaintiff claims that 1,500 square feet of metal ceiling were-renewed at 80 cents per square foot, a total of $1,200. The-defendant admits liability for $300. We find that defendant should be charged with renewal cost on this item in the sum. of $800.

Item No. 21

There is no controversy about Item 21 involving metal’ ceiling cornice. Defendant admits liability for the renewal cost of $45, which is the amount of plaintiff’s claim. !

Item No. 22

Defendant admits liability for Item 22 in the amount of plaintiff’s claim for the renewal of 20 wire skylight glass.. lights at a cost of $90.

Item No. 23

This item is for painting 336 skylights at $5 each, a total' of $1,680. Our comments in rejecting the pending claim under Item No. 17 are applicable to this item, and this claim is rejected.

Item No. 24-

The defendant admits liability under Item No. 24 for the renewal cost of one shutter door for which plaintiff claims $680. The defendant’s admission, however, goes only to the extent of renewing the damaged portion plus the replacement of a missing pulley. We find the fair and reasonable cost for making the repair is $450.

Item No. 25

Under this item plaintiff claims the renewal cost of 3 rolling shutter doors at $300 each, a total of $900. The defendant admits liability as to $550 on this item. We find that the fair and reasonable cost of repairing the 3 rolling shutter doors is $900.

Item No. 26

On this item plaintiff claims the cost of 230 square feet of corrugated sheet metal renewed at 80 cents per square foot, or a total of $184. We find that the fair and reasonable cost for such renewal is 40 cents per square foot, or $92, which amount is allowed.

Item No. 27

Under this item plaintiff claims the renewal cost of 80 linear feet of window sill metal flashings at $1 per foot, or a total of $80. The evidence indicates that the corrosion was far advanced and probably existed prior to the defendant’s tenancy. It was impossible to ascertain what portion of the corrosion was due to defendant’s usage, and the item is, therefore, rejected.

Item No. 28

This item covers three column base plates which were damaged and needed repair. Such damage was not the result of ordinary usage. ' We find the fair and reasonable cost of repairing or renewing these plates is $105, which item is allowed.

Item No. 29

This is a claim for one flag pole which was renewed at a cost of $100. The flag pole was splintered, evidently by the elements. It is not shown that any act of the defendant caused this damage, and the item is rejected.

Item No. SO

This is a claim for cleaning roof slag from the gutters and leaders, in the amount of $750. There is no satisfactory evidence as to the amount of work required to clean the gutters and the item is rejected.

Item No. SI

Plaintiff claims the cost of cleaning asphalt from the track rails on the north side — 3,400 linear feet at $1.50 per foot — a total of $5,100. Defendant admits liability. We find the fair and reasonable cost of such removal to be 50 cents per linear foot, a total of $1,700.

The items not listed above are rejected for the reasons stated in the findings.

The plaintiff is entitled to recover for the items as listed the sum of $33,028.60.

Howell, Judge; MaddeN, Judge; Whitakee, Judge; and LittletoN, Judge, concur.  