p. 264should be taxed, charged, imposed or assessed 'upon the de1mised premises, or any part thereof; that in 1809, the interest ofhis co-lessors vested in the plaintiff; that on the 1st Ju1825, the board of trustees of the village of Utica, by virtue and in pursuance of the act of the legislature incorporating the village, passed April 7, 1817, ordered and directed a street in the village, on which the demised premises are situate, to be pitched and paved; that they caused an assessment of the expense to be made on the owners, occupants and others interested in all the houses and lots intended to be benefitted by the improvement, in proportion to the advantages which each were deemed to acquire; and the sum of $40,50 was assessed on the demised premises to the' plaintiff, as the owner thereof,, which remaining unpaid, the right and title of the plaintiff to the demised premises was sold on the 11th April, 1826, for the term of one year and nine months, being the lowest term of time offered at which the premises would be taken for paying the said assessment. The plaintiff averred notice to the defendant, a requirement to pay the assessment, and the defendant’s refusal; and so he alleged the defendant had broken his covenant, <fec. The defendant do-, murred, and the plaintiff joined.
T. E. Clark, for defendant.
The covenant of the defendant does not embrace an assessment for paving streets. Taxes are burdens, charges or impositions for the benefit of the public. (81 Johns. R. 77.) Taxes charges and impositions-mean the land tax, or taxes ejusdem generis. (3 T. R. 461.) A covenant to pay all taxes, duties, assessments and impositions does not embrace the repair of a party-wall. (8 T. R. 602. 3 id. 458. Woodfall, 258, 9.) Extraordinary repairs, which tend to the benefit of the inheritance, a lessor, reversioner or remainderman may be assessed to pay. (6 Com. Dig. tit. Sewers, E, 5.) Every person ought to be charged in proportion to his profit, (id.)The law authorizing the assessment was not in force at the time the indenture was executed, nor until ten years after-wards; this assessment cannot, therefore, be presumed to have been in the contemplation of the parties, and for that reason cannot be nonsidered as comprehended in the cove
p. 265nant. (Salk. 198. Ld. Raym. 318, S. C. Carthew, 438. 12 Mod. 169, 70. 2 Lev. 68.) This case is distinguishable from 10 Johns. R. 96, and 11 id. 443. In those cases, the tenants were assessed; here, the assessment was imposed on the landlord, according to the advantage derived by him. In those cases, the law authorizing the assessment was in force at the execution of the leases, which circumstance is particularly alluded to by the court, as authorizing the presumption that the assessment must have been in the contemplation of the parties; here, the law under which the assessment was had did not exsist until long after the demise, and the situation of the property in 1806 was such that it could not have entered into the contemplation of the parties that by possibility it could be subjected to charges of the nature which have produced this suit.G. A. Mann, for plaintiff.
The demand in this case falls within the plain sense and terms of the covenant, and the defendant is therefore liable. In Giles v. Hooper, (Carthew, 135,) where the question arose on a lease for years, rendering rent, free and clear from all manner of taxes, charges and impositions whatever, (the very language of the covenant here,) it was ruled that there should be no deduction for a land tax imposed by statute subsequent to the lease, for the covenant extended to every old and new charge whatsoever. So, also, the rule is laid down in Woodfall, 254, and Bac. Abr. tit. Covenant, F. In cases similar in principle and circumstances to the one now under consideration, this court have held the tenant bound. (10 Johns. R. 96, and 11 id. 443.) It is impossible to draw a line of distinction as to what charges and impositions the tenant shall, and what he shall not be liable to pay. Having bound himself to pay all taxes, charges and impositions he cannot complain that he is required to fulfilhis covenant. The court cannot look into equitable considerations. Was it allowable, it might be readily shewn that the enhanced value of the demised premises was more than an equivalent for the charges imposed, considering- the lowness of the rent reserved.
p. 266By the Court,Had there beert no
decjsions 0f courts upon similar covenants, I should think b clear that the parties intended precisely what the language °*" contract imports ; that the lessee ran the risk of all taxes, charges and impositions. These are not words without meaning; nor can I suppose that they were used as synonymous. They import that the landlord was to receive his rent, and during the term, was to be subject to no expense on account of the demised premises. Such is the language of this court in the case of The Corporation of New-York v. Cushman, ( 10 Johns. Rep, 97 ,) upon a similar covenant. By the terms of the covenant in that case, the tenant bound himself to pay “ all such duties, taxes, assessments, impositions and payments, as shall during the term hereby demised be is-issued or grow due and payable out of and for the said demised premises.” The action there was for an assessment on the lot for its benefit, by the extension of Chamber street; and the court said the demand falls within the plain sense and language of the covenant. They enter into an examination of some of the English cases, and shew upon the principles acted on in some of them, that the assessment was binding on the defendant."
There is no doubt that the assessment in question was not a tax, that being a sum imposed, as it is supposed, for some public object. ( 11 Johns. Rep. 77 .) And as to such, it is said-that a covenant like the one in question must be enforced without any deduction for a tax imposed by statute subsequent to the lease, (Carth. 135;) but in other cases it is said that a covenant to pay taxes extends only to taxes in 'use when the lease is executed. (2 Lev. 68.) In the case of New-York v. Cushman, the court say that the- assessment "was made by virtue of a law in force when the lease was made, which it was presumed was in the contemplation of the parties. Butin Brewster v. Ketchin, Ld. Raym. 317, a covenant to pay a rent charge without deducting for any taxes, was held to extend to all taxes of _ a similar nature, and for like purposes with any before imposed though not then subsisting. If this principle be correct, then, charges and impositions may refer to such charges and impositions as are known to be made upon other property similarly situated.
p. 267The premises in question were leased as a village lot, and therefore the par ties may have anticipated that within the term granted some improvements might become necessary and proper, which would require charges and impositions, If the covenant is to be confined to such charges as were imposed when the lease was executed, the tenant was not liable to pay the United States tax which was subsequently imposed; and for the same reason, he should not be required to pay any tax growing out of an expenditure under any laws of the village. Such a construction would not meet the views of the parties when they entered into the contract. At that time no doubt a rent was agreed on proportionate to the then value. If the property became enhanced in value, the defendant had the benefit of the increased value. And if the improvement of the property required some expenditure, there is no hardship in such expenditure being made by the tenant, who has reaped the advantage. It is true the paving is a permanent benefit to the property, and extends beyond the term; and although that may benefit the landlord, yet it cannot be said to injure the tenant. The terms of the contract seem to me to be clear and explicit, and upon them I place my opinion. The plaintiff is entitled to judgment on the demurrer.