#### Herald Square Realty Company, Plaintiff, *v.*Saks & Company, Defendant.

First Department,

July 10, 1913.

Landlord and tenant—lease construed — cost of removing encroachments as ordered by city.

Where a building has been constructed for a tenant, pursuant to plans and specifications approved for or by it, from which it appears that the show windows encroach upon city streets, and the tenant has thereafter taken a lease of the building for a period of years, with covenants that the tenant will “ promptly comply at its own expense with all orders, notices, regulations or requirements of any Municipal, State or other Authority or Departments * * * with reference to said premises,” and the city thereafter revoked all permits for the encroachments upon the streets and ordered their removal, the tenant must bear the expense of removing them.

Provisions in a lease that the tenant will make no alterations to the exterior of the premises without the written consent of the landlord, except *567to install a street entrance according to plans to be approved by the landlord, do not apply to alterations lawfully required by the public authorities.

Scott, J., dissented, with opinion.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

*Samson Lachman [Theodore Baumeister*with him on the brief], for the plaintiff.

*Clayton J. Heermance,*for the defendant.

Laughlin, J.:

The plaintiff is the owner of premises abutting on the east on Broadway and Sixth avenue between Thirty-third and Thirty-fourth streets, in the borough of Manhattan, New York, and of the building thereon; and defendant is in possession thereof under a lease conducting a dry goods department store business. The submission of the case is for the purpose of obtaining a judicial decision as to whether the landlord or the tenant must bear the expenses, aggregating $7,843, incurred by the former in complying with certain resolutions of the board of estimate and apportionment, and with orders duly issued by the president of the borough of Manhattan, pursuant to said resolutions, for' the removal of encroachments of the show windows of the building on Thirty-fourth street and Broadway.

On the 14th day of May, 1901, the plaintiff’s predecessors in title entered into an agreement with Andrew Saks, with a view to erecting a building on the premises and leasing the same to him, or to his assigns, for conducting a dry goods department store business. That agreement provided that the plans for the building should be submitted to him, or his assigns, for approval. The rights of the then owners of the premises under the agreement were duly assigned to the plaintiff on its incorporation on or about the 28th day of May, 1901; and the rights of Mr. Saks were duly assigned to the defendant, which was incorporated by him in the month of January, 1902. On the 14th day of November, 1901, plans and specifications for the building, and an application for permission to erect the same were duly filed with the department of buildings. The plans and specifi*568cations indicated that the show windows of the stores on the ground floor projected from the front of the building beyond the building lines of Thirty-fourth street and Broadway, to the extent of twelve inches at the point of greatest encroachment. The plans and specifications and application were duly approved on the 2'Tth day of December, 1901, and the building was erected pursuant to said plans and specifications between that date and the 1st day of October, 1902. During the course of the erection of the building the plans therefor were from time to time submitted to the defendant. On the completion of the building, the defendant took possession and has ever since occupied the same and on the 2d day of November, 1903, the plaintiff and defendant duly executed an agreement in writing, by which the plaintiff leased the premises, with the building and appurtenances, to the defendant for the period of twenty years and six'months from the 1st day of November, 1903, at an annual rental payable in monthly installments. The tenant agreed to pay all taxes, assessments and' other charges levied against or imposed upon the property, pursuant to the authority of the Legislature of the State, or of the Congress of the United States. The tenant also covenanted that it would “ promptly comply at its own expense with all orders, notices, regulations or requirements of any Municipal, State or other Authority or Departments or of the New York Board of Fire Underwriters, with reference to said premises.” The lease contained further covenants on the part of the tenant, who was the party of the second part, and among others the following: “The said party of the second part further covenants that * * * it will at all times keep the demised premises and every portion thereof, inside and outside, and all articles mentioned in the annexed schedule, in good order, condition and repair. The party of the second part shall be at liberty to make alterations in and replace the fixtures belonging to the party of the first part, all improvements to which shall be and become the property of the party of the first part; nothing herein contained, however, shall be construed to prevent the said party of the second part from assigning this lease at any time during the term hereof to any firm or firms, person or persons, or corporations, having an actual unimpaired cash *569capital of not less than Five hundred thousand dollars ($500,000) at the time of the assignment. * * * And the party of the second part hereby waives the right given by Section 197 of the Real Property Law of the State of New York,* to surrender the possession of said premises, and to terminate the obligation for rent, in case of destruction or injury by fire or the elements. * * * The party of the second part further agrees that it will make no alterations to the exterior of the premises herein demised without the written consent of the party of the first part, except that the said party of the second part shall have the right and option at any time during the term herein granted to install an entrance to the said building from the Thirty-fourth Street side thereof in accordance with designs and plans to he submitted to and approved by the said party of the first part. Nothing herein contained, however, shall be construed to prohibit the party of the second part from making such alterations to the interior of the said premises as it may deem desirable.” The tenant also agreed to keep the building insured against damages by fire for the benefit of the landlord, and to pay the premiums. It was further provided that in the event that the building should be partially destroyed by fire, it should he restored as speedily as possible, but that the landlord should not be obliged to pay toward the restoration more than the amount collected for insurance.

On the 9th day of March, 1911, and the 15th day of February, 1912, the board of estimate and apportionment duly adopted resolutions, which, among other things, repealed, canceled and revoked all permits and licenses for the projection or erection of such encroachments upon or over the streets in question, and directing the president of the borough to remove such projections and encroachments, and thereafter the president of the borough duly ordered the plaintiff and defendant to remove the encroachments of said show windows. The plaintiff duly demanded that the defendant comply with said resolutions and order, and on its failure so to do the plaintiff complied therewith between the 30th day of July and the 20th *570day of October, 1912, and the reasonable cost, and expense of doing the work was the amount specified. The plaintiff thereafter duly demanded of the defendant reimbursement for said amount with interest.

The building having been constructed for the tenant, pursuant to plans and specifications approved for or by it, which show that the show windows encroached upon the streets in question, and it having thereafter taken the formal lease with covenants, among others, as herein set forth, I am of opinion that it was the duty of the tenant to remove the obstructions. *(Markham*v. *Stevenson Brewing Co.,*104 App. Div. 420; 111 id. 178; affd., 188 N. Y. 593; *Bushwick Realty Co.*v. *Sanitary Fire Proofing Co.,*129 App. Div. 533; *Harder Realty & Construction Co.*v. *Lee,*74 Misc. Rep. 436; *Jacobs*v. *McGuire,*77 id. 119.) Stress is laid in behalf of the tenant on the provisions of the lease, by which it covenanted that it would make no alterations to the exterior of the premises without the written consent of the landlord, except to install an entrance from Thirty-fourth street, according to designs and plans to be submitted to and approved by the landlord. Those provisions of the lease did not apply to alterations lawfully required by the public authorities. They were merely designed to prevent the tenant from making changes and alterations to the exterior of the building for its own convenience or purposes. The case of *City of New York*v. *United States Trust Co.*(116 App. Div. 349), upon which the tenant relies, is distinguishable principally upon the ground that in the case at bar the building in question was constructed for the tenant with these encroachments, the removal of which it was bound to know might lawfully be required, and in the lease in that case it was not, as here, expressly provided in the clause requiring the tenant to comply with lawful rules, regulations and ordinances, that such compliance should be at his *expense,*which left - that clause open to the construction that it was intended to relate to rules, regulations and ordinances with respect to the *use*of the premises, as distinguished from *changes and alterations.*Moreover, this lease was for a much longer term, and its provisions all tend to show that the tenant was to bear all expenses, and that the landlord was to receive the rent as a *571return on its investment without • any deduction or liability on account of the premises during the term of the lease.

It follows that the plaintiff is entitled to judgment against the defendant for the sum of $7,843, and interest thereon from the 20th day of October, 1912, together with costs.

Ingraham, P. J., Dowling and Hotchkiss, JJ., concurred; Scott, J., dissented.

*

 General Laws, chap. 46 (Laws of 1896, chap. 547), § 197; now Consol. Laws, chap. 50 (Laws of 1909, chap. 52), § 227.— Rep.

Scott, J. (dissenting):

In my opinion the cost of removing the unlawful obstruction upon the public highway was an expense to be borne by the owner of the building, and not by the tenant. We so held in *City of New York*v. *United States Trust Co.*(116 App. Div. 349), and I think that the reasoning in that case is equally applicable to this. The provision in the lease in this case upon which plaintiff relies is that the tenant “ will promptly comply at its own expense with all orders, notices, regulations or requirements of any Municipal, State or other Authority or Departments or of the Hew York Board of Fire Underwriters with reference to said premises.” The corresponding covenant on the part of the tenant in the *United States Trust Company Case (supra)*was that he would comply with “all the rules, regulations and ordinances of the Board of Health, Fire Department and Building Department, or other city departments and city ordinances applicable to said premises.” If there be any substantial difference in the meaning of the two covenants I am unable to find it. It is agreed in the present case that during the erection of the building the plans therefor were submitted to the defendant. I fail to see any significance in this fact except as evidence that defendant when it took the lease knew that the show windows projected upon the highway. But it did not need an examination of the plans to learn that fact as it was evident upon inspection. So also in the case cited above the encroachment existed when the tenant took the lease, and he accepted it with clear notice. As I look at it the removal of these encroachments was not within the fair meaning of the clause in the lease relied upon. They were from the beginning unlawful encroachments and public nuisances. *(People ex rel. Brown**572*ing, King & Co.*v. *Stover,*145 App. Div. 259; affd., 203 N. Y. 613.) The submission does not state that any permit was ever given by any municipal authority for the erection of the encroachments, and, if the case last cited was well decided, no municipal or other authority ever could have lawfully authorized such erection. The resolutions of the board of estimate and apportionment, attached to the submission, therefore, had no bearing upon these particular encroachments, which were unlawful from the beginning and which it was the duty of the borough president to remove whether the. board of estimate and apportionment directed him to do so or not.

If the knowledge of the plans on the part of the defendant be considered an acquiescence and co-operation on its part in the erection of the encroachment and the creation thereby of the public nuisance, it is well settled that the law will not decree contribution between joint tort feasors. The cases relied upon by plaintiff have no bearing upon the question. *(Markham*v. *Stevenson Brewing Co.,*104 App. Div. 420; *Bushwick Reatty Co.*v. *Sanitary Fire Proofing Co.,*129 id. 533.) They arose under the tenant’s covenant to make repairs. This is not a case of making repairs, but of making a change in the structure of the building.

Judgment should be rendered for the defendant.

Judgment ordered for plaintiff as directed in opinion, with costs. Order to be settled on notice.