Hotel Holding Co. v. Wetherbee & Wood

Headnote

Hotel Holding Co. v. Wetherbee & Wood, 165 App. Div. 605 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1915, in favor of the defendant, upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The plaintiff is the owner of the Hotel Gotham at Fifty-fifth street and Fifth avenue in the city of New York, and the defendant is the tenant thereof under a lease dated November 30, 1908. The question in dispute is whether or not the plaintiff can, under the terms of the lease, recover of the defendant money spent by the plaintiff in structural alterations to the hotel, made necessary by the widening of Fifth avenue, in the year 1911. The lease contained the following provision : “ If any order or regulation of any of the municipal or city authorities or of any board or body hereafter having authority to exercise similar functions, shall, within five years from the date of the commencement of the term of this lease, require structural changes in the building on the demised premises, necessitated by reason of some latent structural defect existing at the time of the execution hereof, or by the widening of Fifth avenue or Fifty-fifth street, and concerning which said authorities or board at such time has jurisdiction to issue said order,

regulation or requirement, then the cost of complying therewith shall be borne and paid by the lessor, provided, however, that such order, regulation or requirement shall first have been reduced to judgment.” Plaintiff contended that the order requiring removal of the encroachments was never reduced to judgment, and, therefore, the defendant was liable under its covenants to répair and to comply with orders of authorities.