
    James C. Ayer et al., Respondents, v. William A. Kobbe, impleaded, etc., Appellant.
    Plaintiffs entered into a written agreement with D., by which' they agreed to demise to him “stores Nos. 87 and 89” L. street, New York, for three years, D. agreeing to lease or to procure responsible persons to take the lease. Plaintiffs further agreed, if the lessees should desire, to put in a steam hoisting apparatus, they receiving, as additional rent, after its completion, twelve per cent on its cost. The premises were arranged to be used as one store, with a stairway at one side, communicating with the upper stories. In the entrance-way, at the foot of the stairs, was a hand hoisting apparatus. D. leased to defendants the upper stories of the building, giving to them therein the benefit of the agreement as to the hoisting apparatus. Subsequently he leased the first floor to other parties, reserving no right to use any portion for a new entrance to the upper stories. Defendants notified plaintiffs that they desired the steam hoisting apparatus, which plaintiffs were proceeding to put in place of the old hand apparatus, when they were restrained by injunction, at the suit of defendants. An agreement was thereupon made between the parties that the work should be discontinued until a new entrance should be made, and, if done in a reasonable time, that defendants then would pay the extra rent, from a specified date. Several months' elapsed before plaintiffs obtained permission of the lessees of the first floor to put in a new entrance, upon obtaining which a new entrance was made, and the hoisting apparatus completed. D. assigned his interest in the lease to plaintiffs. In an action to recover rent, defendants set up, as a counter-claim, damages for the delay in completing the apparatus. Held, that the original agreement contem- ■ plated that the new apparatus should be placed in the existing stairway; that plaintiffs performed, except as prevented by defendants; that the new agreement imposed no further obligations upon plaintiffs, and that, therefore, defendant was not entitled to recoup his damages.
    (Argued December 9, 1874;
    decided January 19, 1875.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, modifying, and affirming as modified, a judgment in favor of plaintiffs, entered upon the report of a referee. (Reported below, 4 J. & S., 158.)
    This action was brought to recover a balance alleged to be due for the rent of certain premises in the city of New York. Defendant sets up, as a counter-claim, damages for an alleged breach of an agreement in the lease, on the part of plaintiffs, in regard to the erection of a steam hoistway.
    In November, 1867, the plaintiffs entered into a written agreement with one A. D. Dickinson, by which they agreed to demise to him, for three years from February 1st, 1868, the whole of the store and premises known as Nos. 87 and 89 Leonard street, at the yearly rent of $26,000. The agreement contained, inter alia, the following provision :
    u The said Ayer & Co. agree that, in case the lessees shall so desire, they will put in an efficient steam hoisting apparatus, in and for the said premises, and, in case the same shall be put in, the said lessees shall pay for the use thereof twelve per cent per annum on the cost of the same, at the usual quarterly days for the payment of rent, and keep the same in repair, the usual wear and tear excepted.” Dickinson agreed to enter into a lease himself, with or without partners, or to procure a responsible firm to become lessees. At this time the building constituted one store; on the easterly side was a stairway, leading to the stores over the first or ground floor. In the entrance-way, in front of the stairs, was a hand hoisting appai-atus, coming down to the floor. In December, 1867, Dickinson underlet to the defendants all of the premises above the first floor, at the yearly rent of $13,000. By that agreement or lease, Dickinson gave to the defendants the benefit and advantage of the stipulation above mentioned, in relation to the hoisting apparatus, and the defendants assumed and undertook to pay the rent therefor to the plaintiffs. About the 1st of February, 1868, the defendants notified the plaintiffs that they desired the hoisting apparatus to be put in, and the latter thereupon procured an engine and machinery for such apparatus, and, on the 13th of March, 1868, had so far put it up, that it could have been completed within two or three days thereafter, but, on the day last mentioned, they were restrained from proceeding therewith by an order of injunction, which had been obtained in an action brought against them by the defendants in this action, to restrain them from completing the putting up of the apparatus in the only hall ór passage-way through which the occupants of the lofts above the first floor could enter their premises. After that order was served, an agreement in writing was made on the nineteenth of March, between the parties to this action, the material part of which is as follows:
    “It being inconvenient and injurious to the business of the said Kobbe, Corlies & Co., that the work of erecting the hoistway in the building Mos. 87 and 89 Leonard street, so far as relates to that part of the same in the present entrance gangway, and above the first floor of said building, should be continued till a new stairway and entrance is provided, and tlio steam hoistway can be at once substituted for the present hand hoistway, the said Kobbe, Corlies & Co. agree that, if said steam hoistway shall be completed, and a new entrance, within a reasonable time, they will consider the work of completing the steam hoistway as completed from and after Monday, the twenty-third day of March, instant, so far as relates to the covenant in their agreement for a lease to pay for the use of the same at the rate of twelve per cent per annum. '
    “ The said Kobbe, Corlies & Co., however, hereby require and insist that such new entrance and stairway, as aforesaid, shall be completed and made ready for the use of themselves and their customers before the work upon such steam hoist-way is, and above said gangway and present entrance, shall be commenced.”
    At the time that agreement was made the firm of Amidown, Lane & Co. had become the lessees, under Dickinson, of the first floor, basement and sub-cellar of the building, and they afterward refused to permit the plaintiffs to build a new passage-way over their portion of the premises, unless they were paid §2,500 therefor. About the seventeenth of October, however, they agreed with the plaintiffs to give their consent to the construction of the rear passage-way, in consideration of §1,000, and thereupon the plaintiffs built the same and completed the erection of the hoisting apparatus about the 1st of November, 1868. Dickinson assigned his lease to plaintiffs. Defendants claimed damage at the rate of §3,000 per annum until the hoisting apparatus was completed, and deducted from their quarterly payments at that rate, refusing to pay the balance. Plaintiffs sought to recover this balance, and also the agreed percentage on the cost of the hoisting apparatus, from the 23d March, 1868, according to the second agreement.
    The referee found, that, neither by the agreement of November, 1867, nor that of March, 1868, nor otherwise, did said plaintiffs undertake or agree that a ne# entrance and stairway, separate from the entrance and gangway used in said buildings in the months of February and March, 1868, should be substituted therefor, or should be completed or made ready for the use of said defendants and their customers before the work on the steam hoisting apparatus for said defendants was commenced or completed. That the plaintiffs did, within a reasonable time after the defendants became the lessees and occupants, proceed to and commence the erection of the steam hoisting apparatus in the said premises, for the use of the defendants, and were hindered and prevented from completing the same by defendants, in the manner herein-before stated and set forth, and that plaintiffs were not guilty of any breach or violation of any provisions, whether express or implied, contained in the said agreement of November, 1867. He thereupon directed judgment for the full amount claimed. The General Term modified the same by deducting the amount allowed for percentage on the cost of the new apparatus prior to its completion.
    
      D. McMahon for the appellant.
    Defendant’s damages were for the breach of the contract forming plaintiffs’ cause of action, and was proper matter of counter-claim. (Code, § 150, sub. 1; Meyers v. Burns, 35 N. Y., 269; Davis v. Banks, 2 Swe., 184; Nichols v. Dusenberry, 2 N. Y., 283; Whitbeck v. Skinner, 7 Hill, 53; Dorwin v. Porter, 5 Den., 306.)
    
      Lucien Birdseye for the respondents.
    The instrument of March 19, 1868, contains no words of contract, promise or agreement on the part of plaintiffs, and imposes no direct burden or obligation upon them. (Smith on Cont. [3d Am. ed., 1853], 89, 90 ; Palmer v. F., P. and C. Plankroad Co., 1 Kern., 376, 388; Wemple v. Stewart, 22 Barb., 154, 160; Newell v. Wheeler, 36 N. Y., 244, 253; Battle v. Roch. City Bk., 3 Comst., 88; Culver v. Sisson, id., 264 ; Elder v. Rouse, 15 Wend., 218; Salsbury v. Philips, 10 J. R., 57; Whitley v. Loftus, 8 Mod., 190; Branch v. Ervington, Doug., 518; Mead v. Billings, 10 J. R., 99; Bull v. Follett, 5 Cow., 170; Ackley v. Haskins, 14 J. R., 74; Thomas v. Gumaer, 7 Wend., 43.)
   Rapallo, J.

The claim of the defendants and appellants to recoup, from the rent due to the plaintiffs, damages for their not having within a reasonable time put in an efficient steam hoisting apparatus for the demised premises, is the only matter now in dispute between the parties. The claim of the plaintiffs for additional rent, consisting of a percentage upon the cost of such apparatus during the delay, has been disposed of by the decision of the General Term of the Superior Court, from which no appeal is taken in this respect.- The defendant’s claim for damages, for the delay in putting in the apparatus, rests upon the following facts:

In Hovember, 1867, the plaintiffs entered into an agreement in writing with one Asa D. Dickinson, whereby they agreed to demise to him the stores Nos. 87 and 89 Leonard street, in the city of Hew York, for the term of three years from the first of February, 1868, at the rent of $26,000 per annum, and to enter into a lease accordingly; and Dickinson agreed to take the premises and enter into such lease himself, with or without partners, or to procure some responsible firm to execute the lease as lessees. It was further agreed, in the same instrument, that in case the lessees should so desire, the plaintiffs would put in an efficient steam-hoisting apparatus in and for the said premises, and that in case the same should be put in, the lessees should pay for the use thereof twelve per cent per annum on the cost of the same.

This is the fundamental agreement upon which all the subsequent transactions of the parties were predicated. It did not designate in what part of the premises the steam hoisting apparatus was to be placed, neither did it provide for or seem to contemplate the occupation by different tenants of separate portions of the demised premises. The agreement was to demise the whole premises to one tenant, or to such parties as he should offer in his own place and stead. All that is contained in the agreeiqent with reference to the steam apparatus has been an substance recited.

The first inquiry in order naturally is, what obligation did this agreement impose upon the landlord, with reference to the location of the steam apparatus. To ascertain this, it is necessary to look at the manner iu which the building with reference to which the agreement was made, was constructed.

The building appears to have constituted one store, although described by two street numbers and covering two lots. It was situated on Leonard street, west of Broadway. There was but one passage or stairway from the street to the lofts .over the first or ground floor. This was on the side of the building nearest to Broadway — the easterly side. In front of this stairway was the ordinary hand hoisting apparatus, extending through the several floors above, but not breaking the ground floor so as to impede passage from the street to the stairway. The agreement with Dickinson was not to construct a new hoistway, but to put in a steam hoisting apparatus; neither did it contain any provision for a new entrance to the lofts. The existing hoistway was apparently the natural place for the steam apparatus; and I can find in the ■original agreement no obligation to furnish a separate entrance from the street to the lofts. This, probably, was rendered necessary by the separate occupation of the premises by different tenants, but was not deemed essential if all of the premises were occupied by the same tenant.

In December, 1867, Dickinson, underlet to the defendants all of the premises above the first floor, at the yearly rent of $13,000, and gave to the defendants the benefit of the stipulation in relation to the hoisting apparatus, and the defendants assumed to pay the rent therefor to the plaintiffs. Subsequently, Dickinson leased to Amidown, Lane & Oo. the first floor, with the basement and sub-cellar, and reserved no right to use any part of the premises for a new entrance to the lofts.

About the 1st of February, 1868, the defendants gave notice to the plaintiffs that they desired the plaintiffs to put in a steam hoisting apparatus,, and the plaintiffs proceeded to •do so, placing it in the entrance where the hand hoistway was. The defendants claimed that the erection of the apparatus in that place would be inconvenient and injurious to their business, and that a new and separate entrance and stairway should be provided for them through the premises which had been let to Amidown, Lane & Go.; and they obtained an injunction restraining the plaintiffs from proceeding with the •erection of the apparatus.

On the 19th of March, 1868, the plaintiffs and defendants ■entered into an agreement, reciting that it was injurious and inconvenient to the business of the defendants that the work of erecting the steam hoistway in the entrance should be discontinued until a new stairway and entrance should be provided, and the defendants agreed that if the said steam hoist-way should he completed and a new entrance made within a reasonable time, they would consider the work of completing the steam hoistway as completed from and after the 23d of March, 186S, so far as relates to the covenant to pay for the use of the same at twelve per cent per annum.

The referee finds that the plaintiffs never undertook or agreed that a new entrance and stairway should be made. They were interested in completing the steam apparatus, so-that they might draw the stipulated rental for its use. The defendants were objecting to the apparatus being put in the entrance-way. To prevent this being done, before a new entrance was provided, they entered into the agreement of March nineteenth, whereby they agreed that if the hoistway should be completed and a new entrance made within a reasonable time, they would consider the work of completing’ the steam hoistway as completed from and after the twenty-third of March, so far as related to the payment of the twelve per cent. The object of this agreement appears to have been simply to fix a time for which the twelve per cent should run, and prevent the delay in obtaining a new entrance from postponing the period at which this rental should begin. But it did not impose upon the plaintiffs any further obligation in respect to the construction of the hoisting apparatus than was created by the original agreement with Dickinson. That agreement, we think, contemplated that the apparatus should be placed in the existing hoistway. The referee has found that the plaintiffs, in all tilings, performed and fulfilled the conditions of the agreement in reference to the putting in of the hoistway except only as prevented therefrom by the defendants. They insisted that it should not be put in until a new entrance and stairway should be completed and ready for use. This was a new-condition imposed by them, and the referee finds that it was no part of any of the agreements between the parties. For the delay occasioned by this demand on the part of the defendants, we do not think the plaintiffs were liable in damages. The only consequence of the failure to make a new entrance within a reasonable time was to deprive the plaintiff’s of the benefit of the agreement that the additional rental should be computed from the twenty-third of March.

The judgment should be affirmed with costs.

All concur.

Judgment affirmed.  