
    Hiram E. Wanamaker, Appellant, v. Butler Manufacturing Company, Respondent.
    Fourth Department,
    January 12, 1910.
    Trial — nonsuit at opening — complaint, but not answer, must be taken as true — landlord and tenant — pleading — breach, of covenant—failure of tenant to make repairs — covenants construed.
    On a motion for a nonsuit on the plaintiff’s opening the allegations of- the complaint must be deemed to be true, but other matters alleged in the answer cannot be taken as admitted.
    
      It is error to nonsuit a landlord at the opening of his case where he’sues a tenant for breach of covenant under a complaint alleging, in substance, that the lessee having covenanted first-, to make all necessary repairs to the demised premises, and, second, to surrender them at the end of the term' in as good condition as at the commencement thereof, reasonable wear and tear excepted, failed to make necessary repairs, but allowed the building to become dilapidated so that it was injured hy the elements, and that the condition of the building on the surrender of the premises was not due to the exceptions contained in the covo'nant, but solely to the defendant’s breach. Such complaint states at least a cause of action for a breach of the second covenant to surrender the premises in good condition.
    Moreover, as both covenants must be read together, the first covenant to make necessary repairs during the term cannot be construed as a covenant for the lessee’s benefit so as to make compliance therewith optional. It should be construed to mean that the lessee must make such-repairs during the term as are necessary to keep the property in such condition that it can bo surrendered at the expiration of the term in compliance with the second covenant.
    Appeal by the plaintiff, Hiram E. Wanamaker,. from a judgment of the Supreme .Court in. favor of the defendant, entered in the office of .the clerk of the county of Onondaga on the 30th day of April, 1909, upon the dismissal of the' complaint by' direction of the court on the opening- upon a trial at the Onondaga Trial Term, and also from an order made on the 12tli day of April, 1909, directing' the dismissal of the complaint.
    
      Charles P. Ryan, for the appellant,
    
      Edward C. Ryan and John W. Hogan, for the respondent.
   Williams, J.:

The order and judgment should be reversed and a new trial granted, with costs to the appellanf'to abide event..

The action was upon a written lease to recover damages for a breach thereof. The case was called for trial, a jury impaneled and the plaintiff opened. Thereupon the motion to dismiss the complaint was made. After some discussion by counsel, the plaintiff asked leave to amend the complaint, which was granted, and. thereafter the order appealed from was made. Some evidence was offered by plaintiff, but that was immaterial here, as all the allegations of the complaint as amended were deemed to be true, for the pnrppse of the motion to' dismiss and the order made thereon. The lease was not set out in or annexed to tlxe complaint, and, therefore, we cannot consider the paper annexed to the answer and alleged therein to be the lease as a correct copy thereof. Mo allegations in the answer are deemed to be admitted for the purposes of the motion made and order granted. In this complaint as amended it was alleged that a lease was made by the plaintiff to the defendant dated August 6, 1902, for five years, of real property in the city of Syracuse, with the appurtenances constituting what had theretofore been the plant and real estate of the Butler Manufacturing Company; the appurtenances consisting of and including buildings on the property, steam fitting, plumbing, gas fitting, all dry kiln, apparatus, engine and boiler, pumps and apparatus in engine room, dust collector system, sprinkler system, cabinet makers’ system of heating boxes, shafting and electric light and gas fixtures and interior telephones; that in and by the terms of such lease the defendant as lessee covenanted and agreed to make all repairs required or necessary to be made in and around the build-, ings, premises and plant; and that he would peaceably quit and surrender the premises at the expiration of the term in as good state and condition as they were in at the commencement of the term, reasonable use and wear thereof, asid damages by the elements excepted / that the defendant did not make the repairs required or necessary to be made in and around the buildings, premises and plant, but on the contrary did cause and permit them to become greatly out of repair as to the steam heating system, the plumbing system, the conductor pipes, gutters and roofs, the floors, joists, timbers and supports, the sprinkler system and water tank connected therewith, and did cause and permit the steam system and plumbing system to be and become out of repair, thereby causing water to leak and overflow from said systems upon the floors, timbers, joists and supports of said building, and did cause and permit the gutters, roofs and conductor pipes to be and become out of repair and in a leaky and dilapidated condition thereby permitting water to overflow upon and through the building ; and did cause the sprinkler system and the tank connected therewith to become out of repair, and in a broken and leaky condition, thereby causing water to overflow upon the building; and did cause and permit the windows of the buildings and the glass therein to. become broken and dilapidated and to remain in such condition without being repaired ; that by reason of defendant’s failure to make the repairs so required or necessary to be made, the floors, roofs, sleepers, joists, timbers and supports of the buildings became saturated with water and decayed, and were thereby greatly weakened, and unable to - Sustain the weight of the buildings, and as a result thereof .portions of the buildings, and the walls thereof settled and were cracked; that by reason of such failure to make repairs the property has deteriorated and its value diminished, and plaintiff has been obliged to lay out and expend large sums, of, money in making such repairs, and some of the damages so caused still remain unrepaired; that in November, 1906, some time before the expiration of the lease, plaintiff served on the defendant a notice requiring it to make these repairs and that it would be held responsible' for damages if it failed to so repair; that the defendant did not surrender the premises leased at the .expiration of the term in as. good state and condition as-they were in at the commencement thereof, reasonable use and wear and. damage of the elements excepted, but surrendered them in a damaged, defective condition and - out of repair, which condition was not due to reasonable use and wear thereof, and. was not due to damages by the elements, but was due to the defendant’s fault, and in violation of the covenant in the lease, and by reason of'the breach thereof plaintiff has sustained damage, and that plaintiff has sustained damage in all $10,000.

The yearly rental was not stated in the complaint. The term expired August 5, 1907. ' This action was commenced in April, 1908. There were two covenants in the lease which were alleged to have been broken, the One to make necessary repairs, and the other to surrender the premises, at the expiration of the term, in a proper condition.

I do not see how the dismissal of the complaint can he sustained, as to the alleged breach of the last covenant. The allegation was that the dhmaged, defective condition in which the property was surrendered was not due to the exceptions contained in the covenant, to wit, the reasonable use, of wear, or damage by the elements, but to the defendant’s fault and breach of the covenant. If plaintiff proved these allegations I see no reason why a recovery could hot be had for dam.ages_forJ)reach of this covenant. fThe main contention, however, is with reference to the Other covenant to make necessary repairs. The defendant claims this was a covenant for its benefit, and which it was optional with it to comply with. I do-not think this is a reasonable or proper construction of the covenant. The two covenants must be considered together. Both were in the lease, and should be regarded as put there for some purpose. If defendant’s theory were to be regarded as correct, why did the lease contain this covenant as to necessary repairs at all ?. Why did the parties not insert a - provision that neither party should be obliged to make any repairs for the benefit of the other, but any repairs the lessee desired made it should make at its own expense % The term was a long one, five years. Is it reasonable to suppose the lessor would allow the property to go entirely unrepaired and uhcared for, save as the lessee might see fit to repair and care for it or the lessor should himself look after it? Considering the two covenants together it seems to me they required the lessee to make such repairs during the term as became necessary to keep the property in a condition so that it could be surrendered in compliance with the' covenant as to_.its condition when surrendered at the expiration of the term. ¡ The extent of such repairs would not in that view be subject to the dictation of either party, but would be determined by agreement of the parties, or in an action between them involving the question. Many cases are referred to by counsel as bearing upon the construction to be given to this covenant to repair when accompanied by the other covenant as to surrender of the premises at the expiration of the term. In none of them is the language of the covenant as to repairs precisely like the one here involved, and we think none of the cases cited are in conflict with the views expressed by us above. Some of those case are: Lockrow v. Horgan (58 N. Y. 635); Lehmaier v. Jones (100 App. Div. 495); Appleton v. Marx (117 id. 206; affd., 191 N. Y. 81); Green v. Eden (2 T. & C. 582); White v. Albany Railway (17 Hun, 98).

The latter case seems to be the one relied upon by the defendant and the trial court in the disposition of this case. The lease' there involved contained the clause that the yearly rent [was] $1,000, payable quarterly, and the ordinary taxes and water rates and [repairs necessary,- with all alterations, if any needed] ” or “ [all repairs or alterations necessary],” and then there' was. the usual covenant to surrender the premises at the expiration of the term. The defendant claimed it was obligated to make only such repairs as it should find to be necessary. The plaintiff claimed tliat it must make all repairs which the premises needed at the time of making the lease or which became necessary during the term. The.court analyzed some of the cases, and used some language in the opinion which might be construed as indicating that its view was that the defendant need only make such repairs as it saw fit, but its decision was expressed plainly at the close of the opinion, viz.: “ We think, therefore, that the referee erred in'giving damages for the failure of the defendants to make the repairs heeded at the timethe lease was taken. The referee has found that there is no evidence from which can be determined the amount of expense of repairing such damages as' accrued during the term apart from that which existed at the time the lease was'made.”

The judgment was reversed apparently because of the error above referred to. In the course of the opinion the court said: “ Although the tenant may agree to expend money on the landlord’s premises beyond what is needed for his own purposes, yet this is an agreement which he is.not likely to make. And it should be' unequivocally expressed. The ordinary rule, of course, is that the tenant takes the property just as it is, and pays his rent-for the use of t in that condition. (Taylor Land. &Ten. § 358.) All that he .is to do is to restore it as he took it. And this is so reasonable- that it would be the probable meaning of any agreement of lease which did not expressly state otherwise. In the" present case the word ‘necessary,’ applied to repairs, may well be understood to denote such repairs as were necessary to the defendants, and not such as might be necessary for some future or different use of the property after their lease had expired. This view is strengthened by the further clause of surrender in as good state and condition as reasonable use and wear would permit. If the defendants were bound,to put on repairs,, other than those which they found necessary t—that is, if the defendants 'were. bound to leave the property in better condition than they found it, this clause of surrender would he inconsistent with the former part of the lease.”

We think the dismissal of the complaint in this case cannot be justified under the decision of the case above quoted from.

We do not deem it necessary to analyze the other cases above cited. We refer to the reports of the cases for a full statement with reference thereto. We are unwilling to place oiir decision upon the original complaint alone. It was quite essential that the covenant brought into the pleading by the amendment should be considered with the one alleged in the original complaint.

The complaint as amended did contain facts sufficient to constitute a cause of action, and, therefore, the trial should have been permitted to proceed. (See Abbott v. Easton, 195 N. Y. 372, 376 and cases therein referred to.)

All concurred.

Judgment reversed and new trial ordered, with costs to'appellant to abide event. 
      
      See 9th ed.— [Rep.
     