Edward Barron Estate Co. v. Waterman

LENNON, P. J.

This is an action for rent, and the only point presented in support of the plaintiff’s appeal from the judgment entered in favor of the defendants involves the construction of certain clauses of a lease executed by the M. Fisher Company to the defendants on December 12, 1908, of certain premises in a building which was then in course of construction. Although the lease at the outset granted the demised premises to the defendants “for the period of five years commencing on the 15th day of January, 1909, and ending on the 14th day of January, 1914, at the monthly rental of $250,” nevertheless, a subsequent clause of the lease provided that, “In case the demised premises shall not 'be finished and ready for occupancy by the 15th day of January, 1909, the rent hereinbefore reserved shall abate and shall not be payable until said demised premises are ready for occupancy; but it is expressly understood that the failure to have said demised premises ready for occupancy by the 15th day of January, 1909, shall not be a cause for vacating, annulling or rescinding this lease, nor shall the lessees by reason thereof be entitled to any damage, rebate or recoupment except the

[173]

rent hereinbefore expressly provided and agreed upon; but in that event the term of this lease shall be extended so that the lessee shall be entitled hereunder to the occupancy of the leased premises for the full term and period of five years from and after the date when said premises shall be ready for occupancy.” The demised premises were not made ready for occupancy until April 1, 1909, at which time the defendants entered into possession of the premises and remained therein under the terms of the lease until January 14, 1914. In the month of May, 1911, the lessor, M. Fisher Company, conveyed its interest in the lot of ground upon which was situate the building in which the demised premises were located, together with its interest in the lease, to the plaintiff. The defendants paid the stipulated rent for the full time that they actually occupied the premises, but after they had vacated the same the plaintiff made demand upon them for the payment of rent from January 15 to April 1, 1914. This demand, which was refused, was predicated upon the theory that the lease obligated the defendants to occupy or pay rent for the demised premises for a full term of five years from April 1, 1909, the date of the actual occupancy of the premises.