
    TEN EYCK v. RECTOR, ETC., OF PROTESTANT EPISCOPAL CHURCH.
    
      N. Y. Supreme Court, Third Department; General Term,
    
    
      September, 1892.
    1. Lease; liability to pay paving assessment). Paving with Belgian blocks a street formerly paved with cobblestones, may be-deemed á permanent improvement.
    
    2. The same construction of tax clause.] A lease contained a covenant that during the term the lessee should pay all taxes, and water rents “and also all assessments for paving, flagging or repairing the streets adjoining said premises ; but assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for ■ permanent, improvements, shall be paid by ” the lessors. An. ■adjoining- street,which had been paved with cobblestones,, . : was, during the. term, repaved with granite block pavement,, with suitable cross-walks and curbing, at an expense about equivalent to two years’ rent. Held, that the assessment for ' such improvement was for a “ permanent improvement,” and as between the 'parties to the lease, was chargeable to the- ' lessor.
    3. The same.) It seems that such improvement was also " of an extraordinary character ” within the exception in the covenant. [Per Putnam, J.]
    Submission of controversy between James Ten Eye’: and others, as trustees, etc., lessors, and The Rector and. Inhabitants of the City of Albany in communion with the; Protestant Episcopal Church in the State of New York, lessees, to determine their respective liability to pay an assessment for repaving Maiden lane in the City of Albany in front of the demised premises, which had been imposed thereon by the local authorities, and in default of payment of which the premises had been sold.
    The facts are fully stated in the opinion.
    
      Arthur L. Andrews (Stedman, Thompson & Andrews, attorneys), for plaintiffs.
    I. The terms of the lease require the defendant to pay the assessment in question (Mayor, etc. of N. Y. v. Cashman, 10 Johns. 96; Matter of Mayor, etc., 11 Id. 77 ; Post v. Kearney, 2 N. Y. 394; Bleecker v. Ballou, 3 Wend. 263).
    II. The defendant contracted, with reference to the power of the common council to prder the pavement in question (Gallup v. Albany Ry. Co., 7 Lans. 471 ; affi’d, 65 N. Y. 1).
    
      Abraham Lansing, for defendant.
    I. Assessments are for the improvement of the freehold (Matter of Mayor, etc. of N. Y., 11 Johns. 77 ; Sharp v. Speir, 4 Hill, 76; Hassan v. City of Rochester, 67 N. Y. 528 ; Taylor's Landl. and Ten. [5 ed]. § 341), and the covenant of the tenant to pay them will not be unreasonably extended (Hoffman v. Ætna Ins. Co., 32 Id. 405 ; Colt v. Phœnix Fire Ins. Co., 54 Id. 595 ; White v. Hoyt, 73 Id. 505 ; Barlow v. Scott, 24 Id. 40).
    II. To pave is properly to do work ; it is: not to provide materials (Matter of Phillips, 60 N. Y. 16, 22).
    III. The covenant requires defendant to bear the burden of all assessments for relaying, for keeping the old pavement in repair.
    IV. Both covenants stand together (Buckmaster v. Thompson, 36 N. Y. 558 Hoffman v. Aetna Ins. Co., 32 Id. 405).
    
      V. A covenant to pay “ all assessments for paving " is not a covenant to pay all assessments for repaving (L. 1889, c, 114; L. 1875, c. 476; Matter of Grube, 81 N. Y. 139; Matter of Phillips, 60 Id. 16; Matter of Burke, 62 Id. 224 ; Matter of Burmeister, 76 Id. 174; Matter of Garvey, 77 Id. 523).
    
      
       See note on Tax Clauses at the end of this case. For a note on Covenants to comply with Municipal Ordinances, Hqalth-board orders and the. like, see 27 Abb. N. C. 334,
    
   PUTNAM, J.

Defendants are in possession of premises situated on Maiden lane and Lodge streets, in the city of Albany, under a lease executed" on April 30, 1859, f°r a term of thirty years, at a yearly rent of $500. Said lease contains the following covenant: During the continuance of said term the said party of the second part shall pay all taxes and water rents which shall be lawfully-assessed or charged upon said premises, and also all assessments for paving, flagging, or repairing the streets adjoining said premises ; but assessments, if any shall be made, .for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part. ” On April 25,1889, said lease was renewed for five years, at the annual rent of $400, but with the same conditions and covenants contained in the original lease.

At the time of the execution of said lease the street's known as “ Maiden lane ” and Lodge street ” had been laid out and graded under the- laws and ordinances applicable to the city of Albany, and had been and were then paved and curbed, and the expenses thereof had been paid for by the owners of the property adjoining said streets, and by the owners of the property in question, to the extent of their proper portion thereof. . . . The pavement of the roadway, as so paved, was of cobblestone, which pavement, from use and the nature of the soil upon which the same was laid, required frequent, and usually annual, repair: The sidewalks of said streets had been and were at the said date laid with- flagstones. • Cobblestones were the pavement in universal use in the city at that time, and no other kind of pavement was then generally known in cities.”

On April 8, 1889, an act was passed by the legislature, amending chapter 298 of the Laws of 1883, entitled “An •act to provide for the government of the city of Albany,” under which the common council of said city of Albany in the summer and fall of the year 1891, caused Maiden lane to be repaved with granite block pavement, and suitable cross-walk stones, and recurbed, and the officers of the city assessed the expense of the work, labor, and services and materials for such work upon the property adjoining said street, and in part upon the property described in said lease. The said premises were duly sold for default in the payment of said assessment, which amounted to $799.79; being the amount assessed, with interest and charges.

The plaintiffs claim that the defendants, under the above-quoted clause of the lease, are legally bound to pay the aforesaid assessment. The defendants insist that they are only bound to pay for ordinary repairs to the street, and that, the said assessment being for unusual and extraordinary as well as permanent improvements, the assessment, therefore, under the lease, is for the plaintiffs to pay.

If the covenant of the defendants had ended with their promise to pay “ all assessments for paving, flagging, or repairing the streets adjoining said premises,” no serious question would arise as to their liability, although the assessment in question was made under the provisions of a statute passed subsequently to the date of the lease (Post v. Kearney, 2 N. Y. [2 Comst.] 394). “ Paving" is defined to be the laying of streets with pavement: and assuming that this word in the lease has the same meaning as “ repaving, ” the covenant above to pay for paving, flagging, or repairing, if unmodified by the subsequent part of the sentence, might be construed as an agreement to pay for all that constitutes paving,—the material of -which a pavement is formed as well as the work of placing it.- But that part of the clause above quoted, in-reference to defendants’paying for assessments, is modified by the balance thereof, viz.: But assessments, if any shall be made, for opening streets, squares, or for other-public purposes of .an extraordinary character or for permanent improvements, shall be paid by the said parties, of the first part.’’ The covenant of defendants, therefore,, taking the whole sentence together, is an- agreement to-pay all assessments for paving, flagging, or repairing-streets adjoining said premises, except assessments for-opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, which shall be paid for by the parties of the first part.

The assessment for repaving and recurbing Maiden, lane in 1891 was doubtless an assessment for a public: purpose; and the question to be determined is, was it an assessment to pay for work of an extraordinary character,, or in the nature of a permanent improvement ? “ Extraordinary” is defined to mean beyond or out of the. common order or rule; not usual, regular, or of a customary kind; not ordinary; .remarkable; uncommon; rare.” It appears that when the lease was made, in 1859, the-streets adjoining such premises, and generally in the city of Albany, were paved with cobblestones ; and I infer from the case that they remained in that condition, with ordinary repairs, until the repaving in question, in 1891, a. period of over thirty years. At this time, in -1891, the whole pavement was removed and replaced with granite.

The question submitted is not free from doubt, and I have had some' hesitation in reaching a conclusion. I think, however, that the covenant contained in the lease on the part of .the defendants was not one to pay assessments for removing a pavement, already existing, and to lay down a new and expensive pavement, with entirely different materials. I think the agreement should be construed to mean that defendants would make the-ordinary repairs, keeping the pavement existing, when the-lease was made in proper condition. The new granite pavement for which the assessment was made was a repavement of the street in the place of the old pavement that had remained over thirty years. ' Hence it was a rare, unusual, infrequent kind of work. It was not ordinary. It was uncommon. The fact that the new pavement was-put down after using the old pavement for over thirty years shows that it was an extraordinary repair. The assessment was also for a public purpose of an extraordinary character, because of its amount. The annual rent reserved in defendants’ lease was $400. The assessment was for $800,—twice the amount of the annual rent. - A repair costing that amount cannot be deemed ordinary. The assessment, therefore, was for a public purpose of an extraordinary character. I think this construction of the covenant in question will carry out what may be deemed was the intent of the parties to the contract.

I also am of the opinion that the assessment may properly be considered as one made by the city to pay for permanent improvement. The old cobblestone pavement was taken up and replaced by granite. This pavement is of a permanent character. “ Permanent ” is defined to mean “ not temporary or subject to change ; abiding; remaining ; fixed or enduring in character, state, or place. ” I think that the court may take judicial notice that the new granite pavement of the character described in this case is permanent, lasting, and not subject to change. In (Twycross v. Fitchburg Railroad Co., 10 Gray, 293), Justice THOMAS, in delivering the opinion of the court, remarked (page 295), in reference to a new pavement laid in front of the plaintiff's premises, referred to in the opinion : “ It is a permanent improvement of the estate, the benefit of which is to be found in the increased value of the estate, and in the increased rent which it would permanently command.”

I conclude, therefore, that, under the clause in the lease to which our attention is called, the plaintiffs were liable to pay for the new pavement in question, and that therefore the defendants should have judgment on the case submitted, with costs.

Mayham, P. J.

The questions in this case grow out of the construction to be placed upon the following exception in the lease: “But assessments, if any shall be made, for opening streets, squares, or for other public purposes •of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part.” If this assessment comes within any of the above exceptions, it must be under that which exempts the lessee from the payment of taxes for permanent improvements. This street was paved with cobble pavement at the time of making and renewing the lease. That kind of pavement necessitated frequent relaying, paving, or repairing, for which the lessee under the lease would be clearly liable. That kind of pavement was in universal use in the city of Albany at that time; and it seems that it required the authority conferred by chapter 298 of the Laws of 1883, to enable the common council to adopt the more permanent but more expensive kind of pavement, known as “ Belgian block.” It is by no means probable that the parties to this lease, either when it was made or renewed, had in contemplation a repavement of this street with a pavement of this character.

Nor do I think the language of the lease which binds the lessee to pay “ all assessments for paving, flagging, or repaving the streets adjoining the premises,” necessarily •embraces this kind of repaveme'nt, especially when read in connection with the paragraph relating to “ permanent improvements,” above quoted. By that paragraph or provision of the lease, the lessee is exempted from taxes imposed for permanent improvements; and it is difficult to conceive ■of a more substantial or permanent improvement than that •of paving a street with granite block. The lease does not, in express terms, require the lessee to pay for “ repaving,” but for “ paving,” which means when pavement is laid for the first time on a dirt road ; repaving is when an old pavement is replaced by a new one. If, by the condition of the streets at the time of making or renewing the lease, there was no “ paving ” that could be required, the lessee was only the more secure from that burden, and the court cannot import into the agreement any word that could increase the defendants’ liability. If, therefore, that provision in the lease is to have any effect, it must be applicable to the permanent improvement of paving this street with granite blocks. If this tax is imposed upon the tenant, it, or the rector, by whom it is represented, would be required to pay for the use of the premises, in 1891, about three times, the amount of the rent stipulated in the lease,—a burden which should not be cast upon the defendants unless, by the clear terms of the lease, they assumed that burden, which I do not think they did.

I therefore concur in the conclusion reached by my Brother Putnam in this case, that the defendants should have judgment, with costs.

Herrick, J.

[dissenting.]—The defendants are in possession of premises situated on Maiden lane and Lodge street, in the city of Albany, under a lease executed on April 30, 18=59. for a term of thirty years, at a yearly rent of $500. Said lease contains the following covenant 1 During the continuance of said term the said party of the second part shall pay all taxes and water rents which shall be lawfully assessed or charged upon said premises, and also all assessments for paving, flagging, or repairing the streets adjoining said premises ; but assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvements, shall be paid by the said parties of the first part.” On April 25, 1889, said lease was renewed for five years, at the annual rent of $400, but with the same conditions and covenants contained in the original lease. At the time of the execution of said lease the streets known as. “Maiden lane ” and “Lodge street” had been laid out and graded under the laws and ordinances applicable to the city of Albany, and had been, and were then, paved and curbed, and the expenses thereof had been paid for, by the owners of the property adjoining •said streets, and by the owners of the property in question to the extent of their proper proportion thereof. The pavement of the roadway, as so paved, was of cobblestone, which pavement, from use and the nature of the soil upon which the same was laid, required frequent, usually annual •repair. The sidewalks of said streets had been and were at the said date laid with flagstones. Cobblestones were the pavement in universal use in the city at that time, and no other kind of pavement was then generally known in -cities.

On April 8, 1889, an act was passed by the legislature .amending chapter 298 of the Laws of 1883, entitled “An act to provide for the government of the city of Albany,” under which the common council of said city of Albany, in the summer and fall of the year 1891, caused Maiden lane to be repaved with granite block pavement, and suitable ■cross-walk stones, and recurbed, and officers of the city assessed the expense of the work, labor, and services and materials for such work upon the property adjoining said ■street, and in part upon the property described in said lease. The said premises were d-uly sold for default in the payment of said assessment, which amounted to $799.79, being the amount assessed, with interest and charges. The plaintiffs claim that the defendants, under the above-quoted clause, of the lease, are legally bound to' pay the aforesaid assessment. The defendants insist that, under the aforesaid clause, they are only bound to pay for ordinary repairs to the street, and that the said assessment is for unusual and extraordinary, as well as permanent, improvements. The assessment, therefore, under the lease, is for the plaintiffs to pay. The intent of the parties must be gathered from the language of the instrument, if possible, and seemingly inharmonious and conflicting expressions must be reconciled. It seems to me that the evident intent was that the defendants should pay the expense of assessments for keeping the streets adjoining the leased premises in proper condition,—keeping them paved and in order. The charter of the city of Albany (chapter 298, tits. 9, 10, Laws 1883) recognizes three classes of paving work upon its streets: “ Paving,” when a pavement is laid for the first time upon a new street, or one theretofore having only a dirt roadbed ; “ repaving,” where a street has once been paved, and the old pavement is taken up and a new one laid in its place; and " repairing,” where the pavement is not entirely relaid, but defects in it made good. The agreement to pay assessments here was part qf the rent, and to ■confine the meaning of the word “ paving,” in the agreement, to the signification attached to it in the charter of the city, would render it of no value whatever, because, as appears from the submitted case, the street in question had.been paved before the execution .of the agreement between the parties hereto, and hence could not be paved again; it could be repaved or repaired, but never" paved.” If the construction contended for by the defendants is ■correct, they are released from all liability to pay that portion of the rent to be paid by taking care of the assessments for paving and repaving the streets, because, as we have seen, the street can never be “ paved; ” and now, being “ repaved ” with granite block pavement, no assessment can be made for repairing such pavement, the city being bound to keep it in repair, at its own expense (chapter 298, tit. 10, § 3, Laws 1883).

If nothing had been said about paying assessments for paving the streets, we might then consider paving the street a permanent improvement, for which the defendants were not to pay, under that clause exempting them from paying assessments for permanent improvements. Proba-, bly paving or repaving a street may be considered a permanent improvement to property. But in giving, or trying to give, effect to all the language of an agreement, and where in one sentence, or part of the sentence, there is a specific provision to pay assessments for various things specifically set forth, among others for paving a street, and in another sentence, or part of the same sentence, assessments for specific purposes, including assessments for permanent improvements, are excepted, it seems to me that the reasonable construction is to hold that paving streets was not a permanent improvement, within the meaning and intent of the parties making the agreement. Paving ” in the agreement here, must be construed in its broader signification, as including “ repaving ; ” as meaning, in fact, the laying of a pavement through or upon the street. And, paving assessments being specifically mentioned as assessments to be paid, they must be held to be excepted from the general terms of the clause,—“ but assessments, if any shall be made, for opening streets, squares, or for other public purposes of an extraordinary character, or for permanent improvement, shall be paid by the party of the first part.”

Neither can the assessment in question be excepted as one of an extraordinary character;—First. Because paving or repaving streets is not an extraordinary thing to be done in a city. The amount of the assessment does not determine the question. It is the purpose for which the assessment is levied that must be of an extraordinary character ; but the amount itself in this case, considering the frontage of the premises and the character of the pavement on the street paved, is not excessive or extraordinary. Second. It does not come within the meaning of that phraseology, because it was before specifically mentioned as one of the assessments to be paid, and therefore cannot be held to be one of those assessments which, in the general terms set forth in the lease, it is provided shall be paid by the parties of the first part to the agreement. General terms and expressions must give way to specific ones.

I am therefore of the opinion that, under the clause in question, the defendants m-ust pay the, assessment for the new pavement, and that the plaintiffs should have judgment upon the case submitted, with costs.

Judgment for defendants.

Note on the Interpretation and Effect of Clauses in Leases providing for the payment of Taxes, assessments, and other public burdens or charges.

‘The following precedents and rulings upon them will be useful to the conveyancer in connection with the decision in the text.

Nature of obligation.] The obligation of the lessee covenantor to pay taxes and the like, is distinct from the obligation to pay rent, and the'lessor is not confined to the form or method of remedies for nonpayment of the tax to which he may be confined for nonpayment of rent. Garner v. Hannah, 6 Duer, 262.

•In Rector, etc. of Trinity Church v. Higgins, 48 N. Y. 533, the ' covenant was to “ bear, pay and discharge all such duties, taxes and assessments and payments of whatever nature or kind soever, as should during the term aforesaid be imposed tin or grow due or payable out of or for, or by reason of the said devised premises, or any part or parcel thereof."

Held, that this is broken when the lessee neglects to pay a tax or assessment duly imposed. It is not simply a contract of indemnity, but by it the tax or assessment, as between the parties, becomes the debt of the lessee. The lessor therefore can maintain an action ' thereon without first paying the tax or assessment, and as damages he is entitled to recover the amount of such tax or assessment.

“ Taxes.”]—A covenant in a lease of New York City property , that the lessee shall pay the “ ordinary and yearly taxes,” embraces the annual water-rent lawfully charged on the premises by the Croton department. Garner v. Hannah, 6 Duer, 262.

In Beals v. Providence Rubber Co., 11 R. I. 381; s. c., 23 Am. R. 472, a covenant by the lessee “ to pay the taxes of every name and kind that should be assessed on the premises at anytime” during the term of the lease,—was held not to cover an assessment for.benefits accruing from street improvements. The court says that such an assessment is a tax in the generic sense of that word but in its meaning, as ordinarily used; a tax is something exacted - for the public service and not by way of compensation for benefits specially conferred. So an assessment for benefits has frequently been held not to be included in the meaning of the word “ taxes ” in statutes such as those exempting particular kinds of property from taxation, etc. Matter of Mayor of New York, 11 Johns, 77; Second Congregationalist Soc. v. City of Providence, 6 R. I. 474. In Jeffrey v. Neale, L. R. 6 C. P. 240, it is said that “it has been frequently held in cases of this nature, some amount of qualification must be placed on words which at first sight might be capable of a very extensive signification.” See, also, Codman v. Johnson, 104 Mass. 491; Tidswell v. Whitworth, L. R. 2 C. P. 326; Baker v. Greenhill, L. R. 3 Q. B. 148; Southall v. Leadbetter, 3 Term Rep. 458; Barrett v. Duke of Bedford, 8 Id. 602; Matter of College Street, 8 R. I. 474; Bolling v. Stokes, 5 Leigh, 178; Harvard College v. Boston, 104 Mass. 470; People v. Mayor of Brooklyn, 4 N. Y. 432 ; Stephani v. Catholic Bishop, 2 Bradw. Ill. App. 249.

Burdens imposed on the lessor personally.] In Budd v. Marshall, (Ct. of App. 1880), 5 C. P. D. 481; s. c., 42 L. T. R. N. S. 793, the tenant defendant had convenanted to “ bear, pay, and discharge,” certain specified taxes and rates, and“ all other taxes, rates, duties, and assessments whatsoever . . . taxed, charged, rated, assessed, or imposed on the said demised premises or any part thereof, or upon the landlord or tenant in respect thereof.” Held, that under this covenant the lessor plaintiff was entitled to recover from the defendant the costs of executing certain work which was required of the landlord by the sanitary authorities, in order to abate a .nuisance, and which the plaintiff had accordingly made.

Lord Justice Brett dissented on the view that under the ■peculiar words of the covenant, the remedy of the landlord was to let the sanitary authorities do the work and charge the expense on him, and then recover the charge from the tenant.

In commenting on this subject the editor of the Law Times described the English practice of conveyances as follows;

“ The ordinary form is as follows: ‘ All rates, taxes, charges, assessments, and impositions whatsoever, whether parliamentary, parochial, or otherwise.’ If the payment can be brought within those words, and those are the only words used, there is an end of the matter. The occupier must either recoup his landlord, or- rest satisfied with having himself paid, as the case may be. In very many cases, however, the covenant goes on in something like the following words; ‘ Charged upon the premises or in respect of which the occupier is liable.’ On a close examination-of the various ’ statutes which regulate local authorities, and enable them -to incur expenses with regard to the improvements or management of their districts, it will be found that there are expenses which are neither -charged upon the premises, nor in respect of which is the occupier liable.”

And he added: “ In considering the question, therefore, whether the owner or occupier is liable under any. particular covenant, it becomes a most important question as to whether the words of the covenant are qualified by any such words as ‘ charged upon the premises ’ or • in respect of which the occupier is liable.' If such words are used, careful search must be made in the statute applicable to the particular expenses incurred, and an important distinction must be drawn between those incurred in the metropolitan area and those incurred without. If the statutes either make the expenses a charge upon the premises, or declare the occupier liable for them, then the owner would not be liable under the covenant. If, on the other hand, they do not do so, then the owner, and not the occupier, is the person who must pay.”

Fire clause and tax clause together.] “ And the said lessees for themselves and their representatives hereby covenant with the said lessors their representatives and assigns, that they will during the said term, and for such further time as the said lessees or any other person or persons claiming under them shall hold the said premises or any part thereof, pay unto the lessors, their heirs or assigns, the said quarterly rent; upon the day hereinbefore appointed for the payment thereof (except only in case of fire or other casualty as hereinafter mentioned), and also all the taxes, and water taxes, and assessments whatsoever, whether in the nature of taxes now in being or not, which may be payable for, or .in respect of the said premises or any part thereof during the said term ; And also will keep all and singular the said premises in such repair as the same are in at the commencement of said term, or may be put in by the said lessors or their representatives during the continuance thereof, reasonable use and wearing thereof, and damage by accidental fire or other inevitable accidents only excepted ; the taxes to be paid on the first day of November in each year.”

“ Also, that in case the premises or any part thereof shall, during said term, be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be rendered thereby -unfit for use and habitation, in such case, the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and 1 extent.of the injury sustained, shall be suspended or abated untili the said premises shall have been put in proper condition for use .and habitation by the said lessors, or these presents shall thereby be determined and ended at the election of the said lessors or their legal representatives, provided, however, that the lessors shall-not.be at liberty so to terminate this lease, unless the damage by fire or other casualty, as aforesaid, shall exceed fifteen thousand .dollars.”

The foregoing covenants were contained in alease madeFebruary i, 1865, of an estate on Washington street, Boston, for the term of ten. years. "On August 1, 1865, the lessees, with the assent of the lessors, Sargent and others, the plaintiffs, assigned to the defendants, Pray and others, their interest in the lease, the defendants agreeing to perform the “conditions, covenants and stipulations of .the lease.” The tax assessed May 1, 1872, was left unpaid. On .November 9, 1872, the building was totally destroyed by fire and absolutely unfit for occupation; whereupon the lessors elected to-terminate the lease. May 19,1873, the tax of 1872 remaining unpaid, the lessors plaintiffs paid it to the city with interest for the delay, and demanded repayment of defendants who refused ; hence this trial. A tax of $2012.40 was assessed on the premises, to the plaintiffs, on May •1, 1872, by the city of Boston, which, together with $60.36 interest thereon, and $24.52 costs, in all amounting to $2097.28, was paid by the-plaintiffs to the city on May 19,1873, which sum the plaintiffs on said day demanded of the defendants, who declined to pay the same. The superior court ordered judgment for the plaintiffs and. the defendants appealed.

Ames, J., said (p. 268) : '• The covenant of the lessees was not a' mere promise of indemnity against the tax, but a promise to pay it to the lessors on the first day of November each year of the term. It was not necessary to the plaintiffs’ right of action therefore, upon that covenant, that they should first have paid the tax themselves (Wilkinson v. Libbey, 1 Allen, 375). The destruction of the building by fire did not entitle the tenants under thexlause of the lease referring to that contingency, to a proportionate abatement of the taxes'payable by them (Wood v. Bogle, 115 Mass. 30). The plaintiffs are therefore entitled to recover the amount paid. by them to the city with interest from the date of the payment, not including the costs. The costs incurred by reason of any delay in their payinent to the city must be considered as the result of their own fault or negligence, and are" not to be included in the amount which the plaintiff may recover.”

Judgment for plaintiffs.

In Carnes v. Hersey, 117 Mass. 269, the terms of a lease contained the following:

“ Yielding and paying (except only in case of fire or other casualty, as hereinafter is mentioned) the rent or sum of-dollars yearly, by equal quarterly payments of -dollars for each and every quarter during said term, and at that rate for any fraction of a quarter not completed at the legal termination of said term, and for such further time as the said lessee, or any other person or persons claiming under him, shall hold the premises hereby demised or any ■part thereof; the first payment thereof to be made on the first day ■of October next :■ provided, however, that in case .said lessee shall not receive possession of the whole of the demised premises on the first day of July, said lessor shall make a just proportionate deduction from the first quarter’s rent and taxes.

“ And the said lessee, for himself and his representatives, hereby •covenants and agrees with and to the said lessor, his heirs, representatives and assigns, that he will during the said term, and for such further time as he or any other person or persons claiming under him shall hold the said premises or any part thereof, pay unto the said lessor, his heirs, representatives or assigns, the said yearly rent as aforesaid (except only in case of fire or other ■casualty, as hereinafter mentioned) ; and also all taxes and assessments whatsoever, whether in the nature of taxes now in being or •not, payable for or in respect of said premises, or any part thereof, during said term or during such further time as the said lessee or any person or persons claiming under him shall hold the same or any part thereof . . But said lessee shall pay only five-sixths of the taxes to be assessed in May next, and such pro rata proportion of the taxes assessed in or after the month of May, A. D. 1876, as shall correspond to the portion of time after the first day of said month of May for and during which he shall occupy said premises, or they shall be occupied by any person claiming under him.

And provided also, that in case the said premises or any part 1 thereof, shall during said term be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be rendered thereby unfit for use and habitation, then and in such case the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor, or these presents shall be thereby determined, at the election of the said .lessor, or his heirs, representatives and assigns.

“ And the said lessor covenants and agrees with the said lessee and his representatives, that he and they, paying the rent aforesaid and performing the covenants herein contained on his and their part to be paid and performed, shall peaceably hold and er.joy the. said demised premises without hindrance or interruption by the said-lessor or any other person or persons whomsoever.”

By a léase containing the foregoing terms, on March 15, 1866, the defendant leased to the plaintiff an estate on Summer street,Boston, for the term of ten years from July 1, 1866.

The store on the demised premises was totally destroyed in the. great fire of November 9, 1872. The defendant, the lessor, subsequently rebuilt the store, and on its completion, about August 7, 1873, refused, upon the plaintiff’s demand, to permit the plaintiff to occupy the same, but let the premises to other tenants without the plaintiff’s consent.

The defendant in his answer alleged that in pursuance of the terms of' the lease, to the effect that in case of such a destruction of the store by fire, the lease should be thereby determined at the defendant’s election, the defendant elected that the lease should be-thereby determined, and notified the plaintiff of such election, and that the plaintiff acquiesced therein; but the defendant contended that by the proper construction of the lease, the plaintiff must show an election by the defendant that it should continue.

The judge found that both parties understood soon after the fire that the lease was terminated, and that any future occupancy of- the premises must be under a new lease, and that the defendant had given the plaintiff reasonable written notice of his election to terminate the lease.

There was evidence that on Novembers, 1872, before the fire, the plaintiff paid the annual taxes of that year, that he also paid the rent up to the date of the fire, but claimed that an allowance should be made to him out of the amount paid by him for the year’s taxes, proportionate to the period between the date of the fire and. the end of the tax year, on the ground that the rent had been suspended previously. The defendant refused to make the allowance.

By the Court (p. 272): “This case is not distinguishable-from previous decisions (Wilkinson v. Libbey, 1 Allen, 375 ; Amory v. Melvin, 112 Mass. 83; Wood v. Bogle, 115 Id. 30; Paul v. Chickering, 117 Id. 265 ; Sargent v. Pray, 117 Id. 267). The special provisions for the apportionment of taxes in the first ■ and last years of the lease leave the general covenant, to pay all taxes payable for or in respect of the premises during the term, unqualified. during the intermediate time and strengthen the inference that such was the intention of the parties."

For a similar decision, see Howe v. Bryant, 117 Mass. 273 (footnote).

In Paul v. Chickering, 117 Mass. 265, the terms of a lease contained the following:

“ And the said Y. Z. for himself and his representatives, hereby covenants with and promises to the said A. B. and his representatives and assigns, that he will, during the said term, pay unto the lessor, his heirs or assigns, the said yearly rent (except only in case of fire or other casualty, as hereinafter mentioned), and also all the taxes, water-rates and assessments whatsoever, whether in the nature of taxes, now in being or not, which may be payable for, or in respect of the said premises or any part thereof:

And provided, also, that in case the premises or any part thereof shall, during said term, be destroyed or damaged by fire (unless occasioned by the culpable negligence or carelessness of said lessees or their agents) or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation, then and in such case, the rent hereinbefore reserved, or a just and proportionate part thereof according to the nature and extent of the injury sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor; or these presents shall thereby be determined and ended at the election of the said lessor or his legal representatives-

The defendants entered, and during their occupancy, on May 1,, 1873, the city assessed to the plaintiff a tax on the premises. On May 30, 1873, the buildings were totally destroyed by fire. On June 14, 1873, the plaintiff notified the defendants that he elected to determine the indenture and the estate thereby created. On June 25, 1873, plaintiff sold the premises to John Scott, and conveyed to him by a deed poll which contained the following covenant: “ And that I will pay to the grantee one half of the taxes assessed thereon on the first day of May last, when he shall have paid the same.”

Scott accordingly paid the taxes, and the plaintiff repaid him one half, the collector sending the bill to the plaintiff and he to Scott. The plaintiff áfterwards requested the defendants to pay him the amount of the taxes, and the defendants declined to do so. Hence this suit.

Ames, J., said (p. 267) : “ There can be no doubt that the covenant of the lessees bound them to the payment of the tax, unless the circumstances of the sale of the demised premises by the plaintiff after the term had been brought to a close by the fire, furnish some* ground for relieving them from that obligation (Wilkinson v. Libbey, 1 Allen, 375 ; Walker v. Whittemore, 112 Mass. 187 ; Amory v. Melvin, Id. 83). It appears to us to be impossible that that transaction should have that effect. The promise of Scott, the purchaser, to pay one half of the tax in question was only a part of the consideration which he gave for the land. The payment of half of the amount of the tax, which otherwise the vendor must have paid, were merely' a part of the price of the estate. The price was the whole amount agreed to be paid, and it is immaterial whether it were expressed in one gross sum, or divided into separate items. Whatever price the plaintiff obtained for the estate, and in whatever mode it was computed, it could have no effect upon the covenant of the lessees to pay the amount of the tax to him.”

Judgment for plaintiff for whole tax.

In Minot v. Joy, 118 Mass. 308, a lease of a store contained the following:

“ Yielding and paying (except only in case of fire or other casualty) as hereinafter is mentioned, the sum of-dollars yearly, by equal quarterly payments of-dollars for each and every quarter during said term, and at that rate for such further time as the said lessees or any other person or persons claiming under them shall hold the said premises or any part thereof; the first payment thereof to be made on the-day of-, now next ensuing. And the said lessees, for themselves and their representatives, hereby covenant and agree with and to the said lessor, his representatives and assigns, that they will, during the said term, and for such further time as he or any other person or persons claiming under them shall hold the said premises or any part thereof, pay unto the said lessor, his heirs and assigns, the said yearly rent as aforesaid (except only in case of fire or other casualty, as hereinafter mentioned) and also all the taxes and assessments whatsoever, whether in the nature of taxes now in being or not, which may be payable, for or in respect of the premises or any part thereof during the said term, together with the rent, taxes and assessments as above stated, for such further time as the lessees or those claiming under them may hold the premises; and also will keep all and singular the said premises in such repair as the same are in at the commencement of said term, or may be put in by the said lessor or his representatives during the continance thereof, reasonable use and wearing thereof and damages by fire or other casualties excepted.

“ Provided, however, that in case the premises or any part thereof shall, during said term, be destroyed or damaged by fire, or other unavoidable casualty, so that the same shall be rendered thereby unfit for use and habitation, then, and in such case, the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated until the premises shall have been put by the lessor or those having said estate in the premises, in proper condition for use and habitation; but the said lessees or their representatives shall, nevertheless, be responsible under this indenture, for the payment of the proportionate part of a quarter’s rent accrued up to the time of the happening of such casualty, and for any preceding breach of covenant.”

The defendants entered upon and occupied the premises under the lease, and in April, 1872, by a written agreement, made between "them and the plaintiffs, as trustees, etc., the lease was extended for three years, from July 1, 1872. The defendants continued in actual •occupation until the building was totally destroyed by fire, in November, 1872. The plaintiffs did not rebuild, and the premises remained unoccupied. The defendants paid no rent accruing, and no taxes levied, after the fire, though they contended that the covenants of the lease still remained in force. The taxes for 1873 were paid by the plaintiffs, who now sought judgment therefor.

Ames, J., said (p. 310): “ By the express terms of the lease, the defendants have covenanted to pay a specific sum, in regular instalments, as rent, during the continuance of the term. They have also, in like manner bound themselves to pay to the lessors all taxes and assessments .... which may become payable for or in respect of the premises during the term, and according to the. decision in Wilkinson v. Libbey (1 Allen, 375), this covenant applies to all taxes assessed during the term upon the demised premises (Amory v. Melvin, 112 Mass. 83), The stipulation that, in case of the destruction of the building by fire, the rent shall be suspended until the lessors shall rebuild, does not have the effect to put aq •end to the lease, or bring the term to a close. It contains no provision that the liability for the taxes shall either be terminated, or subject to any apportionment. The promise to pay the taxes during the term is absolute and unconditional, and so long as the term •continues, the defendants continue liable for their payment (Wood v. Bogle, 115 Mass. 30; Sargent v. Pray, 117 Id. 267 ; Paul v. Chickering, Ib. 265 ; Carnes v. Hersey, Ib. 269). It is argued that the payment of the taxes is a part of the rent of the premises, and ought to terminate or be suspended when the rent is suspended ; but the difficulty is that the lease makes a distinction between rent and taxes, and while it provides that in a certain contingency the rent shall cease, it makes no such provision as to the taxes. We cannot alter the written contracts of parties upon the mere suggestion that the course of events has occasioned a hardship to one of them, that was not considered in making the agreement. On the-contrary, we must suppose that the lessors were induced to make the lease, by the expectation that they were to be absolutely relieved of the taxes during the whole term ; and were also to receive rent, during the term if the building should last so long.”

Judgment for plaintiffs.

Apportioning.] In Amory v. Melvin, 112 Mass. 83, the covenant was that the “ lessees .... will during the said term . . . pay to the said lessors .... all taxes .... which may be payable or assessed in respect of the premises on any part thereof during said term.”

Held, that as the lease was only of a part of a building the-lessor might tprove usage to apportion taxes among the tenants, according to their respective rents.

Time of incidence of burden under Tax clause.] In Skidmore v. Hart, 13 Hun, 441, the lease contained the following:

“ The said party of the second part, his heirs, executors, administrators or assigns, shall and will, at his or their own proper costs and charges, bear, pay and discharge all such Croton water rents, and also such taxes and assessments, extraordinary as well as ordinary, as shall, during the term hereby granted, be levied, assessed, imposed or grow due and payable upon, out of or for the said demised premises and all parts thereof, as the same now exist or may hereafter be imposed in accordance with the terms of this lease, by virtue of any present or future law of the United States of America, or of the State of New York, or of the corporation of the city and county of New York, or of either of them, or of any legal proceedings or lawful authority whatever, when and as the same shall become due and payable.”

Held, that under the New York City statute, by which the-assessment rolls are open lor examination from the second Monday in January to April 30, and are returned to the board of supervisors on the first Monday of July in each year, and the amount of the tax is thereafter set down opposite to the items of real and personal property on the list, the tax for the year 1875 grew due and became payable after May 1, 1875, and that the covenantor defendant was. bound to pay the same.

The Court say: The question . . . seems to be determined in favor of the plaintiff by two cases in the court, of appeals (Dowdney et al. v. Mayor, 54 N. Y. 186; Barlow et al. v. St. Nicholas Bank, 63 Id. 399). It was expressly held in the latter case that the entry of land in an assessment-roll did not constitute an incumbrance thereon, and the assessment or the subsequent levying of the taxes thereon was not a breach of covenant against incumbrances contained in the deed, executed after the completion of the assessment-roll and before the levying of the taxes, and it is said in that case that the assessment is the basis upon which the board of assessors act in apportioning the taxes, but it is in no sense imposed as a charge upon the land described in the roll. It is one of the preliminaiy steps which result in taxation. It is further said in that case, and properly, that the roll,-when complete, fixes the valuation of the property to be taxed, but it does not determine the amount of the taxes, and the most which can be claimed is, that it renders more definite and certain the liability to-taxation which nevertheless existed before the assessment was made. The cases are analogous, but the covenant of the iefendant is broader than the covenant against incumbrances , because it assumes the payment of all such taxes and assessments as shall be levied, assessed, imposed, grow due and become payable. ■ The plaintiff for these reasons, is entitled to judgment.”

Under a covenant to pay all, etc., “ which may be payable or assessed . . . during said term,” held, that taxes which in contemplation of law were assessed before expiration of the term, though not fixed in amount nor payable until after its expiration, were included (Amory v. Melvin, 112 Mass. 83).

A covenant (in a lease) that covenantor will pay all taxes that may be assessed or levied upon the property during the term, includes taxes for the last year of the term, if assessed before the expiration of the lease, though not levied till after that day. 1876, Waterman v. Harkness, 2 Mo. App. 494.

For the rules determining the time of incidence of taxes and assessments, see 24 Abb. N. C. 136.  