Fleischmann v. Toplitz — 32 N.Y. St. Rep. 546

Majority

p. 546

Louis Fleischmann, App’lt, v. Lippman Toplitz, Resp’t.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Landlord and tenant — Expense of removing debris after fire.

A stable occupied by plaintiff was destroyed by Are, which also consumed a number of his horses. By the lease he was required to surrender the premises in good order and repair, etc., and also, at his own expense, to comply with the rules, orders and regulations of the department of buildings and board of health. Notice having been given to remove the debris, Held, that it was the duty of the defendant, as owner, to remove the debris of the building and of plaintiff to remove the carcasses of the horses, and that each" should pay for the portion of the expense of removal lor which he was respectively liable.

p. 547

Exceptions, ordered to be heard in the first instance at general term. ,

A. J. JDittenlioefer, for app’lt; A. JR. JDyett, for resp’t

The plaintiff was the lessee of the premises Nos. 43 and 45 W est Thirteenth street under a lease for five years, which would expire on the 1st of November, 1887.,,

On the 25th of July, 1887, the premises were totally destroyed by fire. They were used by the lessee as a stable, and by the fire a number of horses which were on the premises at the time it-occurred were destroyed, and formed a part of the debris. Immediately after the fire a notice was served upon the defendant as owner of the premises, requiring him to remove the same, the-object of which seems to have been to dispose of the dead carcasses of the horses, which would become noisome

The parties hereto had a conversation in regard to that notice, and an understanding was arrived at between them by which the plaintiff was to proceed with the removal and the defendant to repay him provided he and not the plaintiff were bound to make the removal. The plaintiff proceeded to do as contemplated, and then insisting that the defendant was liable to refund the amount expended, and the defendant denying such obligation, this action was brought. The lease under which the plaintiff held contained a covenant on his part to surrender the premises at the expiration of the term in good order and repair, ordinary wear and tear and injury by the elements excepted, and also at his own proper costs, charges and expenses to comply with all the roles, order's and regulations of the department of buildings and the board of health of the city of New York. The defendant insists that under both of these covenants the plaintiff was bound to remove the carcasses mentioned. The plaintiff on the contrary contends that no such obligation was imposed.

The case is novel, and examination and research has not revealed a kindred case or guide to its decision on authority. The-result of a consideration of all the facts and circumstances has resulted nevertheless in this conclusion, namely, that the obligations springing from the relations existing between the parties are several. The plaintiff was bound to remove the offensive carcasses from the ground under his agreement to leave the premises in good state and condition, subject only to the impairment of reasonable use, and the defendant was equally bound to remove the debris to enable the plaintiff to get at the same. This is a just and equitable disposition of the controversy. The general debris being a part of the premises rented, is the landlord’s and subject to his control, the term having terminated. The carcasses, connected as they were with the occupation of the premises by the plaintiff and his business, the animals of which they were the remains having been employed therein, are his.

The different amounts expended for the removal of the carcasses and debris should, therefore, be paid by the parties, the plaintiff paying for the former and the defendant for the latter^

p. 548

namely, the plaintiff $83.43, the defendant $465.50, these amounts appearing to be undisputed on the record.

No doubt is entertained that the plaintiff abandoned the possession of the premises after the fire, and that such was the understanding of the parties upon which they acted, and none of the exceptions, which have been fully examined, having any value, the only question requiring particular examination is the right of the plaintiff to recover for money expended for the defendant, and if so, how much.

For these reasons the judgment must be modified -as suggested, by deducting $83.43 from the judgment and the interest charged thereon, and affirmed as to the balance, without costs to either party.

Yak Brunt, P. J., and Daniels, J., concur.