Budget Way Cleaners and Laundry, Inc. v. Simon

VALLÉE, J.

Appeal from a consolidated judgment entered in two actions: one action brought by Budget Way Cleaners and Laundry, Inc., called Budget, is for declaratory relief and a money judgment; the other, brought by Simon, is for a money judgment.

On February 17, 1949, Budget, as lessor, and Simon, as lessee, entered into a lease of a parcel of improved realty at a rental of $100 a month and Simon took possession. Simon in the lease agreed to pay for all public utilities supplied to

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the property. On February 26, 1951, Simon, as sublessor, and Budget, as sublessee, entered into a sublease of the property at a rental of $150 a month and Budget took possession. On taking possession Budget made arrangements for public utility services in its own name. No provision was made in the sublease as to who should pay for public utility service. Between February 17, 1949, and March 18, 1955, bills for public utilities service supplied to the property in the amount of $4,239.34 were rendered. Simon did not pay them; Budget did.

In the action for declaratory relief Budget sought a declaration of the rights of the parties with respect to whose obligation it was to pay for the public utilities and a judgment for $4,239.34. In the action for money Simon alleged Budget had not paid rent in the amount of $100. Budget admitted the fact. Budget filed a cross-complaint in the Simon action in the same form as its complaint in the action for declaratory relief. As affirmative defenses to the cross-complaint Simon alleged that at least part of Budget’s demand was barred by the statute of limitations; his only obligation under the sublease was to remove certain equipment; after the execution of the sublease Budget paid all utility bills as and when rendered; he only agreed to pay for such utilities as were furnished to the property for his use.

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The actions were consolidated. The court found the provision in the lease that Simon should pay for all public utilities supplied the demised premises “was intended to mean, and did mean, that Simon would pay for all water, power, gas and utility bills rendered for services supplied at Simon’s request and for Simon’s own use. That said provision in said lease was surplusage only, since under the law, if said provision had been left out Simon would have been obligated to pay such bills anyway”; the sublease contained no covenant on the part of Budget to pay for the public utilities; it was the intention of the parties that the rentals under the lease and sublease would be set off one against the other; Budget never did make a demand on Simon to pay the public utility bills rendered and paid by Budget until April 1954 and the parties never did intend that Simon should pay Budget’s bills; Budget is indebted to Simon in