Eichner v. Cohen — 48 Misc. 541

Majority

p. 541

Daniel Eichner, Respondent, v. Joseph Cohen, Appellant.

(Supreme Court, Appellate Term,

November, 1905.)

Headnote

Landlord and tenant — Rights, duties and liabilities in regard to premises—• Incumbrances, taxes and assessments — Agreement fixing amount to be paid by tenant.

Where a three years’ lease of a portion of a vacant lot provides for the erection of a bath house thereon by the tenants, and that should the premises be assessed at a higher valuation than at the time of the execution of the lease, on account of the erection of the bathing establishment and other improvements, the tenants should pay annually during the term the difference in the amount of the taxes, the written declaration of the assignee of the lease made upon the execution of an instrument accepting him as tenant, that he owed the landlord the amount of ■ the increase in taxes for the past two years, coupled with a verbal agreement to pay taxes upon $5,000 of the increased valuation of the premises, creates no new liability, but merely fixes the amount to be paid under the existing liability and which it would otherwise have been necessary to ascertain by computation, or in some other manner, and, having been fairly made,- the landlord is entitled to recover from the assignee the amount thus settled by agreement with the tenant.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan.

Israel P. Adlerman, for appellant.

Arthur Eurber, for respondent.

On June 12, 1901, the plaintiff leased to Abraham Sturm and another, for a term of years, the rear portion of a lot on Hester street. It was contemplated, and the lease provided, that the lessees were to make somewhat extensive improvements upon the leased property by way of erecting a bath house. The lease provided as follows: “ It is agreed that should the premises known as 21 Hester Street be assessed by the tax assessors of New York City

p. 542

for the purposes of taxation at a higher value than they are assessed at the present time, on account of the erection of the bathing establishment and other improvements which the parties of the second part propose to make in the said premises, the difference in amount between the taxes as they now are and what they will be at the higher assessed value, shall be paid by the parties of the second part annually during the term of this lease.”' At the time the lease was made, the premises were assessed at $10,500, which was increased to $12,500 for the years 1901 and 1902; to $22,000 for the year 1903 and to $30,000 for the year 1904. On August 14, 1903, the defendant having become the assignee of the lease and having assumed the obligation thereof, the plaintiff executed an instrument accepting him as lessee; and the defendant, at the same time, signed the following declaration: “I owe David Eichner the amount of $74.00 which is the increase of taxes on property No. 21 Hester Street for the past two years from $10,000 to $11,500 according to the tax bills in possession of David Eichner who stated the rate was 2.47, Payable Sept. 1, 1903.” At the same time, it was verbally agreed between plaintiff and defendant that defendant should, for the remainder of the term, pay the taxes upon $5,000 of the increased valuation of the property. This action is for the proportion of the taxes unpaid by defendant from the commencement of the lease. The appellant has argued this appeal upon the theory that the parties made some new agreement in 1903, whereby defendant assumed an obligation different from that imposed by the lease. This is a wholly erroneous view of the transaction. All that either the written or the verbal agreement amounted to was a fixation, by mutual consent, of the precise amount which defendant was obligated to pay by the lease, but which, in the lease, had been left open to ascertainment by calculation or otherwise. The purpose of the agreement in the lease was that the landlord should be saved harmless from any increase óf taxes by reason of the new structure; for it is a matter of common knowledge and common sense that additional improvements imply additional value and, consequently, additional assessment. If, after

p. 543

these improvements were made, the assessed valuation was increased, the increase would be due prima facie to the improvements, unless some other cause was shown. Hone other was shown in this case. It was not shown that property in this particular neighborhood, or in the city generally, had been assessed higher than when the lease was made; although, doubtless, as to the assessments of 1903 and 1904, some such proof could have been obtained. In that case, if there had been no agreement as to the proportion of increase which was properly chargeable to defendant’s improvement, it might have been necessary to go into proof; but the plaintiff’s right to collect, and the defendant’s obligation to pay, would have been unaffected. It was perfectly competent for the parties and, apparently, advantageous to defendant, to agree upon a sum which should be assumed to represent the proportion of the increased assessment properly attributable to the improvements. Such an agreement, if fairly made, and there is no contention that it was unfair, is sufficient to support the judgment. It creates no new liability, but merely fixes the amount to be paid under the existing liability.

Gildersleeve and MacLeae, JJ., concur.

Judgment affirmed, with costs.