
    The Reliable Steam Power Co., Resp’t, v. The Solidarity Watch Case Company, App’lt.
    
      (City Court of Brooklyn, General Term
    
    
      Filed June 23, 1890.)
    
    Lease — "Right os tenant to terminate.
    By the terms of a lease of part of a building, plaintiff agreed to furnish defendant with steam power every work day, except such time as may be necessary for repairs and alterations to.plaintiff’s plant, and agreed that the accumulated delays for that purpose should not exceed twelve work days in each year, “ except in case of accident to landlord’s plant by explosion or otherwise,” in which case defendant might terminate the lease. A fire took place in the building which injured defendant’s shafting and belts, so that they could not be used until the building and belts were repaired, which took three weeks. The injury to plaintiff’s belting was. trifling, and could have been replaced in a day, if needed. Held, that defendant was not entitled to terminate the lease, as the injuries were not caused by an explosion, and if they were, it was not shown that plaintiff failed for more than twelve days to furnish the power.
    Appeal from judgment in favor of plaintiff, entered by direction of the court.
    Action for rent of the top floor of a building leased by plaintiff to defendant.
    
      J. M. & 3. N. Van Coil, for resp’t; Chas. 3. Machín, for app’lt.
   Van Wyck, J.

Plaintiff leased to defendant, for a fixed term and price, the top floor of a building with steam power. The engine and boilers which supplied the power were.located in an adjoining building. A fire occurred in the demised premises, and a few days thereafter defendant notified plaintiff of its intention to move ■out, which was done. To this action for rent, for a period subsequent to the complete repair of premises, defendant’s defense is, that it vacated premises and terminated the lease as it had a right to do. The court directed a verdict for plaintiff, and from the judgment entered thereupon this appeal was taken. The parties to this lease, recognizing that there were two species of property let, which were liable to such injuries from particular causes as would render them useless, contracted with reference thereto. There is always a chance of destruction of buildings from fire, and steam plants from explosion. The ninth paragraph of the lease is the usual fire clause, but there is no contention that there was a total destruction of the building therefrom; therefore this gave defendant no right to terminate the lease. This brings us to the consideration of the first paragraph of this instrument, which gave defendant, under certain circumstances, the right to terminate the lease, which reads as follows:

“ 1st. The landlord agrees to furnish said steam power, live steam and water for all work days, viz. : every day in the year excepting Sundays and legal holidays, for ten hours daily, except on Saturdays, when they shall be nine hours, between the usual hours of morning and afternoon, excepting also such time as may be necessary for repairs and alterations in landlord’s plant, and the landlord agrees that the accumulated delays for repairs on engines, boilers or machinery shall not exceed twelve of the work days in each year, except in case of accident to landlord’s plant, by explosion or otherwise, in which case the tenant may terminate this lease, but it is hereby agreed that the landlord shall not be held liable for any loss to tenant, caused by such accident.”

Such steam power plant consisted of engine and boilers placed in another building, and the shafting and belting which communicated the power to this top floor, and also 1,600 feet of two-inch pipe which conveyed the steam from the boiler through the building. From the main shaft defendant received or took power by means of its own countershaft and belts. This top floor and defendant’s own shafting and belts were so injured by fire as to render it impossible for defendant to use them till such damages were repaired, the building by plaintiff and this shafting and belting by defendant, which required about three weeks.

Defendant could have been in no condition to take power or steam for that time. We must not forget that some of the belting and shafting that were injured.did not form a part of plaintiff’s plant. The injury to plaintiff’s plant was of a trifling character, viz.: the damage to several belts by water or fire, which could have been replaced in a day, if needed, and were actually replaced within three days, and the damage to twenty feet of two-inch pipe out of 1,600 feet, which could have been replaced immediately, and would have been ready for use as soon as defendant would have needed it if defendant had not vacated the premises. Defendant was not, and could not have been delayed in carrying on its business by injury to plaintiff’s steam plant. The delay was ■caused solely by the injury to the building itself.

So far as power and steam were concerned, the plaintiff stood ready to supply them to defendant as soon as it needed them, or was ready to receive them. What do the words, “ accident by explosion,” used in connection with a steam boiler or engine, mean? Explosion is defined by Webster to be “ a bursting or sudden expansion of any elastic fluid with force and a loud report.” It is manifest the parties to the lease had in mind the inherent danger of steam boilers to explosion from the expansion of the steam. There is not the slightest evidence to show that any such explosion injured the plant referred to in this paragraph.

The defendant’s counsel insisted that any accident to the plant by explosion gave it the right to terminate the lease. We cannot agree with this construction of that clause, which means and says that if the landlord shall fail to supply power or steam for every work day of the year, except twelve days necessary for repairs to plant," the lease shall remain in force, but the landlord shall not be liable to tenant for such failure unless the time shall be necessarily prolonged beyond twelve days to make repairs of injuries caused by an accident from explosion, always thought of in the use of steam, in which case the landlord shall have more than the twelve days to make such repairs without liability to tenant, though in that case the tenant shall have the option of electing the lease ended.

Defendant failed to establish, in our opinion, the right to end this lease for injuries to the plant; first, because the injuries were not caused by an explosion within the intent of the lease, and secondly, even if the injuries were caused by an explosion, the defendant has not shown that plaintiff failed for more than twelve work days to give defendant the power and steam required and needed.

We think the judgment and order ought to be affirmed, with costs.

Osborne, J., concurs.  