HULL v. BURNS

HULL v. BURNS. N. Y. City Court; General Term, November, 1885. Action for money Paid.—Lease; covenant of lessee to make repairs. Under a lease of a dwelling-house in the city of New York, wherein the defendant as lessee covenanted during the term “ at his own cost and expense, to make and do all repairs required to the plumbing work and pipes, range and fixtures belonging thereto, and to keep the croton pipes, and the connections with the croton main, free from ice and other obstructions at his own expense, and to keep the sewer connections free from obstructions to the satisfaction of the municipal and police authorities, and not to call upon ” the lessor, plaintiff, for any disbursements or outlay during the term, and to promptly execute and fulfill all the city ordinances applicable to said premises, and “all orders and requirements imposed by the Board of Health and Police Department, in, upon, or connected ” with the premises, during the term, at his own expense —Held, .that the defendant was bound to repay to the plaintiff the amount expended by him for plumbing work upon the premises, during the term, upon the defendant’s complaint to the board of health of sewer gas, <fcc., in the house, although an order o,f the board for the repairs to be made by the plaintiff was outstanding when the lease was made, and defendant had then no knowledge thereof. Appeal by the plaintiff from a judgment entered upon a verdict for the defendant, and from an order denying a motion for a new trial. John H. Hull sued Samuel F. Burns for the amount expended by him for plumbing work upon a dwelling house in the city of New York, leased by the plaintiff to defendant- The lease contained a covenant on the part of the lessee, which appears fnlly in the opinion {infra), to make#11 repairs to the plumbing work, etc., at his own expense during the term, and to fulfill all the ordinances of the city, and all orders or requirements imposed by the board of health connected with the premises. It appeared upon the trial that, upon the complaint of a former tenant of the premises, the board of health had ordered the plumbing work in question to be done by the owner, and that the order was outstanding when the defendant leased the house, and that he had no knowledge thereof. After his term .began, he complained to the board of health of the existence of sewer gas, etc., and plaintiff was thereupon compelled to execute the orders of the board ; and for the cost of the work done, he brought this action upon the covenant in the lease. Under the charge of the court, the jury found a verdict for the defendant. The trial term, upon the motion for a new trial upon the judges minutes, held that the covenant in question should be construed to require the lessee to comply with the orders of the board of health in regard to defects in the premises arising during the term, and even those existing at the time, unless they could not be ascertained by due diligence, and were known to the lessor and undisclosed to him by the lessee ; and that the concealment of the existence of the outstanding order of the board of health when the lease was made was a wrongful act amounting to a fraud, the court citing Wallace y. Lent (29 How. Pr. 289); and distinguishing Lockrow y. Horgan (58 N. Y. 635). The motion for a new trial being denied, this appeal was taken. John Henry Hull, plaintiff and appellant in person. Wm. J. Hardy, for the defendant, respondent The opinion of Hyatt, J., upon the motion for a new trial, is reported in full in N. Y. Daily Reg. May 16, 1885. [MAJORITY — Nehrbas, J.] Nehrbas, J. —Under the express covenant of the lease signed by the defendant, whereby tlie latter agreed 16 to take good care of the house and its fixtures, and suffer no waste, and at his own cost and expense to make and do all repairs required to the plumbing work and pipes, range and fixtures belonging thereto, and to keep the Croton pipes, and the connections with the Croton main, free from ice and other obstructions at his own expense, and to keep the sewer connections free from obstructions to the satisfaction of the municipal and police authorities, and not to call upon the party of the first part (plaintiff) for any disbursements or outlay during the hereby granted term. And, further, promptly to execute and fulfill all the ordinances of the city corporation applicable to said premises, and all orders and requirements imposed by the board of health and the police department in, upon, or connected with said premises during said term, or other grievances at his own expense,” the expense to which the plaintiff was put should be borne by the defendant. If this covenant had been performed in its letter and spirit according to its legal effect, the repairs ordered by the board of health would not have been required, and the expense to which the plaintiff was put would not have been made necessary. For these reasons we think the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. This result may seem hard to the defendant, bud it is only enforcing the necessary legal effect of his express covenant. We cannot make contracts for parties, nor alter them when made. We must give such effect to them as their language and legal effect require. Ordered accordingly.