
    Caroline L. G. Scott, Resp’t, v. The Haverstraw Clay & Brick Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Lease—Covenants to keep in good order—Construction.
    A lease of a brickyard premises contained a covenant by the lessee that-it would maintain a proper and substantial brick yard on the whole of said premises, and keep and preserve all the buildings, etc., then on or which might be erected on the premises in good repair and condition at its own expense and leave the same in good condition at the expiration of the term;, all such improvements to be the property of the lessor. An extension lease provided that the lessee should erect and maintain a steam_ engine of sufficient power to manufacture brick on said premises, with suitable-buildings and fixtures and machinery for the same, and and leave the same on the premises in good order and condition, such engine and fixtures. being a part consideration for the extension. Held, that these covenants required the lessee to maintain one brickyard covering the whole premises and to furnish and leave thereon all the appliances necessary to a fully equipped brickyard and that the engine called for was one of sufficient power to run a brickyard covering the whole premises.
    3. Same—Damages.
    For breach of such covenants the measure of damage is the reasonable cost and expense of replacing everthing which was to be left on the premises.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    
      Calvin Frost, for app’lt; Alonzo Wheeler (F. A. Brewster, of counsel), for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the report of a referee.

The action was brought to recover damages for the breach of covenants contained in two leases of certain brickyard premises located in Haverstraw, in Boclcland county. The first lease was. dated on the 23d day of February, 1878, and was made by Caroline Louisa Garner Scott, wife of James Scott, and William Henry Garner, to- the Haverstraw Clay & Brick Company, a domestic corporation organized under the laws of the state of Hew York, and demised brick yards and premises particularly described for five years from the 1st day of April, 1878, for the annual rent of $1,200, payable quarterly.

The defendant in that lease covenanted and agreed to use and occupy the premises for the purpose of the business of brick making from clay and sand to be procured elsewhere than on the premises, and that it would not use any clay, sand or other material for making brick procured from or on any part of the demised premises; and further that it would at its own proper cost and expense maintain and keep up a proper and substantial brick yard upon the whole of the demised premises; that if would keep and preserve all the buildings, sheds, docks, pits and other improvements then on the premises, or which thereafter might be erected, enlarged or altered, in good repair and condition, at its own cost and expense, and at the expiration of the term, or other sooner determination of the lease, to leave the premises with all the docks, buildings, pits, improvements and fixtures in good order and condition, the whole of which at the determination of the lease from whatever cause was to become the sole and absolute property of the parties of the first part, and at such time to be surrendered and yielded up to the parties of the first part,, or their legal representatives, in good order and condition. The defendant further covenants that it would not suffer or allow any bats from said yard or vessel, or any other material to be thrown in the Hudson river near the bulkheads or docks, so as in any way to obstruct or interfere with the navigation or free use thereof which might be connected with or belong to the demised premises so as to make the waters of the river in any degree more shallow or less deep.

There was a further covenant that the defendant on the deter-ruination of the lease would leave the docks, yards and grounds in good, smooth, regular surface and condition, and in good repair, and it was stated to be a part of the consideration of the lease that the party of the second part should keep the property from deterioration, and leave on the same all additions and improvements as aforesaid.

It was charged in the complaint in this action that under the terms of this first lease the defendant entered into the possession and occupation of the-premises about the 1st day of April, 1878, and in pursuance of the said lease, and of the extension mentioned in the complaint, continued in possession until the 1st day of April, 1888. It was alleged also that soon after the execution and delivery of the lease, and after the defendants had entered into possession of the premises, the title of the premises became wholly vested in the plaintiff in this action, Caroline L. G. Scott

It was further alleged that after the plaintiff so became the sole owner of the premises, she executed and delivered to the defendant, and the defendant accepted from' her, another instrument in writing, purporting and intending to be an extension of the terms of the said lease, for the purposes and upon the conditions mentioned in the first lease. In this second instrument, called a lease and also an extension of the first lease, the plaintiff demised to the defendant the same premises with the buildings and improvements thereon mentioned in the first lease for another term of five years, to commence on the 1st day of April, 1883, and to expire on the 1st day of April, 1888, unless sooner determined, at the yearly rental of $1,200, payable quarterly, and in this last instrument the defendant covenanted and agreed to pay that rent, and also that it would erect, put upon and maintain on the premises a steam engine for the manufacture of brick thereon of sufficient horsepower and capacity for the purpose thereof, with suitable buildings and fixtures and all inachinery required therefor, and that at the expiration of the last term it would leave the buildings, and every part thereof on the premises, in good order and condition, the whole of them to be and become the absolute property of the plaintiff; such engine, fixtures, building and machinery being a part consideration for the granting of the term thereby demised.

And it was further covenanted and agreed by the defendant that all the covenants, agreements and conditions in the first lease on its part made and agreed should be applicable to, and be a part of the last lease in every respect, with like force and effect as if recited in the last lease, and that it would keep, observe and perform the same with reference to the term thereby demised, as if they were expressed in the first lease. It was alleged in the complaint, that when the first lease went into effect, and the defendant entered into possession of the premises, there were thereon sheds, docks, pits, boilers and engines and appurtenances and fixtures and other improvements belonging to the plaintiff, and that during the occupation of the premises by the defendant certain buildings, sheds, additions, improvements and fixtures were erected and put upon the premises by the defendant, all of which by the terms of the lease became the absolute property of the plaintiff. Then it was alleged in the complaint, that in violation of the covenants of the lease, and the extension thereof, the. defendant failed to keep up and maintain a proper and substantial brickyard upon the whole of the said demised premises, but caused or permitted the siad premises, and the docks, sheds, buildings, machinery, fixtures, additiions and other improvements upon the premises, as well those thereupon at the beginning of the lease as those afterward erected or put thereon during the said demised term, to become and remain greatly out of repair, and to deteriorate and depreciate in condition and value.

It was further alleged, that at the expiration of the lease the defendant failed to surrender the premises in good order and condition, and failed to leave the grounds smooth and regular, but that the grounds were left greatly out of repair and uneven, and the facing upon the yards broken and worn out. Also, that the defendant caused or permitted certain buildings, sheds, pits, lumber, machines and other property belonging to the plaintiff to be removed and taken away from the premises; that the defendant wholly failed, as required by the said extensions of the lease, to put up, maintain and leave upon, the premises a steam engine of sufficient horse power and capacity, with suitable buildings and fixtures, and all machinery required therefor. Then it was alleged that by reason of the failure of the defendant to keep and perform the covenants in the leases, the plaintiff sustained damage to a large amount.

Most of the allegations in the complaint respecting the damage and negligence and default of the defendant were put in issue. The action was tried before a referee, and he has found all the material facts in favor of the plaintiff substantially as they were alleged in the complaint, and found that there was due to the plaintiff from the defendant $13,327.43, which includes interest.

The principal contention arose upon the trial and on the argument before us respecting the construction to be placed upon the leases, it being the contention of the plaintiff that the covenants in the lease on the part of the defendant to occupy and maintain at its own cost and expense a proper and substantial brickyard upon the whole of the demised premises meant one yard covering the whole premises; that it also meant every appliance necessary to a fully equipped brickyard, and that it was the intention of the plaintiff to require the defendant to furnish and leave upon the premises a fully equipped brickyard, and that the covenant to maintain, keep and repair, required the defendant to construct, keep, maintain and leave one brickyard upon the premises, and further, that the extension agreement, called the second lease, requiring the defendant to put up, erect and maintain on said premises a steam engine for the manufacture of brick thereon, of sufficient horse power and capacity for the purpose thereof, with suitable buildings and fixtures and all machinery required therefor, called for one engine of sufficient power to run a brickyard covering the whole property.

It was the contention of the plaintiff also that the covenant of the lease required that all buildings, sheds, docks, pits and other improvements on the premises at the commencement of the lease, belonging to the lessor, or thereafter erected thereon, should be kept in good order and condition and left on the. premises, and become the property of the plaintiff.

The referee took that view of the law, and tried and decided the cause upon that theory, and our conclusion is the same. It is to be noted that this covenant differs from the ordinary covenants in a lease, to leave the demised premises in good order and condition at the end of the lease. It is an absolute, unqualified covenant and agreement to leave the premises, with the docks, buildings, pits, improvements and fixtures in good order and condition at the expiration of the term fixed in the lease. The property was to be preserved and handed over to the plaintiff in good order.

The defendant on this appeal challenged also the measure of damages adopted by the referee, but it is to be borne in mind that the parties took pains to express in the writing that it was a part of the consideration of the lease that the defendant should keep the property from deterioration and leave all the additions and improvements upon the same, and the second lease provided that the whole were to become the absolute property of the plaintiff.

For a breach of this covenant, the plaintiff was entitled to recover the damages sustained thereby, which must be considered the reasonable cost and expense of replacing everything which was to be left upon the premises by the defendant, and we find that the referee has been careful to keep within bounds in all his valuations, and we think his measure of damage was as favorable to the defendant as could be expected.

Onr conclusion is, that the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  