Rodemann v. City of New York — 162 A.D. 150

Majority

p. 150

George R. Rodemann, Appellant, v. The City of New York, Respondent.

Second Department,

April 24, 1914.

Headnote

Municipal corporations — city of Hew York — lease of building fot school purposes — liability for breach of covenant.

Where the board of education of the city of New York leases a building for school purposes, the board is solely liable for damages for breach of a covenant contained in the lease. The city itself is not liable.

Appeal by the plaintiff," George R. Rodemann, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of July, 1913.

Edward J. McCrossin [William H. Baker with him on the brief], for the appellant.

James D. Bell [Frank L. Polk with him on the brief], for the respondent.

This is an appeal from an order of the Special Term granting the motion of the defendant for judgment on the pleadings. The plaintiff is the owner of certain real property in the borough of Brooklyn. In 1905 he leased the premises under written lease for the term of five years, for the purposes of the board of education of the city of New York. This lease is attached to the complaint as an exhibit. It appears that the lease was executed by the assistant secretary of the board of education, and that it was authorized by a resolution of the board of commissioners of the sinking fund of the city of New York. At the expiration of the original term it was renewed for an additional term of two years, and again renewed for a further term of two years. The lease in question contained a covenant that the lessee would surrender the premises at the end of the demised term in good condition. The plaintiff claims a breach of this covenant, and asks damages therefor.

p. 151

The whole question involved is whether or not the city of New York is the party hable for a breach of said covenant. Section 149 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1904, chap. 247; Laws of 1910, chap. 545, and Laws of 1912, chap. 398) provides that all leases of the city shall be executed for the city by the comptroller. The general power of the commissioners of the sinking fund in regard to leases is to be found in section 217 of the same charter. Under section 1055 of the charter title to all property acquired for the purposes of the board of education vests in the city of New York, but all control over the same is vested in the board of education of said city. This same section provides as follows: “Suits in relation to such property shall be brought in the name of the said board of education.” Section 1066 of the charter (as amd. by Laws of 1910, chap. 456)^[1] provides, in relation to the board of education: “Said board, shall have power to lease property required for the purpose of furnishing school accommodations, and to prepare and execute leases therefor.” Unquestionably the property involved in this action was required for the purposes of furnishing school accommodations. We think that the meaning of section 1066 is that when such property is leased the lease shall be executed by the board of education. That body has repeatedly been held liable for its own contracts, and not the city of New York.

The order should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Stapleton and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

* Since amd. by Laws of 1913, chap. 35.— [Rep.