
    Frank Phelps, Resp’t, v. The Mayor, etc., of New York, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    Lease—Waiver by ehtry of lessee of repairs promised to be made BY LESSOR.
    The defendant leased to plaintiff certain wharfage rights upon a pier and one-half of a bulkhead with a privilege of one renewal, which latter the plaintiff obtained. The lease and the renewal both contained a clause by which the defendants agreed to make such repairs to the property as the board of dock commissioners should consider necessary to put it in condition for service; and further, both parties agreed that no claim that the property was not in a suitable condition when the term began should be made; the plaintiff further agreed to keep the property in repair and that if, on notice from the dock commissioners, he did not do so, defendants might at his expense. It was admitted by stipulation that the premises were not in proper condition when the term begun and that plaintiff had been at large expense to repair them. The court also found that the board of dock commissioners required certain repairs at the beginning of the second term. In an action for the expense of repairs, Held, that the matter of repairs was made dependent upon the action of the dock commissioners and that as it was not shown that they had required repairs at the beginning of the first term, the plaintiff, in view of his covenant to repair and that no claim should be made that the property was not in suitable condition when rented, could not recover; that plaintiff should have refused to enter.
    Appeal from judgment entered upon trial by the court without pry.
    
      Sidney J. Cowen, for app’lt; Thos. Rochfort and Abram Kling, for resp’t.
   Van Brunt, P. J.

This action was brought seeking the reformation of a lease under seal, executed by the defendant to the plaintiff, and for damages.

The court having held that no cause of action for reformation was made out, but that a case might exist for damages, directed the same to be heard at circuit.

Thereupon by stipulation, the facts having been agreed upon between the parties in reference to the subject .of damages, the case was re-submitted and the learned judge rendered judgment in favor of the plaintiff.

There was no oral testimony taken, and the findings of the court were necessarily based upon the documentary evidence and stipulations presented to it

It appeared from the evidence that on the 30th of April, 1881, the defendant leased the rights of wharfage upon pier No. 40, East River, and one-half of the bulkhead easterly to the plaintiff for a term commencing May 1, 1882, and ending May 1, 1887, for the annual rental of $9,000, and in said lease or grant covenanted with the plaintiff for a renewal of the lease for five years commencing May 1, 1887, at the option of the plaintiff and upon the same terms and conditions, save that the rent for the renewal term was to-be $11,000 instead of $9,000, and that the lease or grant for such renewal term should contain no covenant for another renewal.

The plaintiff duly availed himself of this option, and on the 16th of May, 1887, a renewal lease dated May 1, 1887, was executed. Both of said leases contained the following clauses:

“And the parties of the first part promise and agree that they will, prior to the commencement of the aforesaid term of years, or as soon after such commencement as shall be found practicable, make such repairs to the above-described wharf property as the said board of commissioners may consider necessary to put such wharf property in a suitable condition for service during the aforesaid term. And the parties hereto promise, agree and understand that no claim that the said wharf property is not, or was not at the time of the commencement of said term, in a suitable condition for the uses and purposes hereinbefore mentioned, shall or will, at any time, be made or allowed.
“ And the said party of the second part does further covenant, promise and agree that he will at all times during said term, except as hereinbefore agreed, put, keep and maintain all the said wharf property, and every part thereof and the structures thereon, in good and sufficient repair and condition, and will well and sufficiently dredge, and keep dredged, the slip or slips adjacent thereto; and that all such repairs, rebuilding and dredging during said term shall be made and done at the sole cost, charge and expense of the said party of the second part. And in case the said party of the second part shall make default therein, and shall neglect or refuse to make such repairs, or do such dredging, for the space of ten days after notice so to do shall have been given by the said department of docks, or any proper officer, agent or employe thereof, or of said parties of the first part, then this grant and everything herein contained shall be forfeited, and the party of the second part will pay to the parties of the first part such damages as they may have sustained; or at their or its option, the said parties of the first part, or the said department, may make such repairs, or do such dredging, and the full cost and expense thereof shall and will be paid on demand by the said party of the second part to the said parties of the first part.”

It appears from the stipulation that both parties claim and admit that the said premises mentioned in said lease were not in a suitable condition for service at the commencement of said term, commencing May 1, 1887, and that such claim was made at the time of the execution of said lease, and has ever since been made; and that the plaintiff, from May 1, 1882, to May 1, 1887, put, kept and maintained said pier and premises, and every part thereof, in good and sufficient repair and condition; that prior to May 1, 1887, the pier and bulkhead were old, and by that time, notwithstanding the said repairs that plaintiff had put upon them, said premises were not in suitable condition for service for the second five years, and that since May 1,1887, the plaintiff has expended the reasonable sum of $12,500 for repairs, by which said wharf was placed in a suitable condition for service.

The court also found that at the time of the execution of the second lease the board of commissioners at the head of and governing the department of docks considered it necessary that certain repairs should be made to said premises to put the same in ■suitable condition for service.

This action was brought to recover the amount expended by the plaintiff in putting the pier in suitable condition for service ; .and the learned judge below seemb to have founded his conclusion as to the plaintiff’s right to recover upon the ground that the dock commissioners had decided that the repairs made by the plaintiff were necessary to put the pier in suitable condition for service, and that the defendants had refused to make the same.

There is no question but that it v<as the intention and understanding of the parties that the dock commissioners should determine what was necessary to put the wharf property in suitable condition for service during the term, and that except so far as they have acted no claim that the same was not at the time of the commencement of the term in suitable condition for use could be made or allowed.

This is certainly the'language of the contract The lessee, undoubtedly, if the premises were in an untenantable condition when they were tendered to him under his lease would have a right to refuse to take possession. But after he had taken possession then, under the clauses of the lease in question, no claim could be made "that the premises were untenantable unless the dock commissioners so decided.

If the dock commissioners determined that certain repairs were necessary to put the wharf property in suitable condition for ser■vice at the commencement of the term, then clearly the defendants were bound to make such repairs and the plaintiff could recover whatever damage he might sustain by reason of the failure "to make such repairs. But beyond that no claim for repairs could be made because the lease contained the express covenant that the tenant should keep and maintain the property and the structures thereon in good and sufficient repair and condition, and that all repairs, rebuilding, etc., done during the term should be at the ■sole cost, charge and expense of the lessee.

Now in the case at bar there is no evidence whatever, as far as we have been able to ascertain, of any determination upon the part of the dock commissioners that any repairs were necessary to put the premises in a suitable condition for service.

It may be claimed that this is contrary to the admission contained in the stipulation in which it is stated that both parties •claim and admit that said premises were not in a suitable condition for service at the commencement of the second term. Exactly what is meant by this stipulation it is not entirely easy to determine. But there is no admission of any action upon the part of the dock commissioners upon this point. In respect to the second lease it might very well be argued that the provision as to repairs prior to the commencement of the term or as soon after such commencement as shall be found practicable is entirely inconsistent with the covenant upon the part of the lessee contained in the original lease that he will keep the said wharf property and every part thereof and the structures thereon in good and sufficient repair and condition and that all such repairs, rebuilding, etc., during said term shall be made and done at his sole cost, charge and expense. And although it has been admitted upon this record that the plaintiff did, during the first term, keep and maintain the premises and every part thereof in good and sufficient repair and condition, such admission seems to be inconsistent with the further admission that on the 1st of May, 1887, notwithstanding such repairs, the wharves were not in a suitable condition for service; the second admission being predicated however upon upon the fact that the pier and bulkhead were old.

It seems to us in the condition of the proofs, that, the new lease not having been executed until after the commencement of the term therein mentioned, in the absence of any decision upon the part of the dock commissioners that any repairs were necessary to put the premises in a condition suitable for service, the only cause left to the plaintiff was to refuse to take the lease or to enter into possession of the premises and pay the rent, having no claim for want of repair.

We think, therefore, that the judgment was erroneous and that the same should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daniels, J., concurs.  