Halperin v. McCrory Stores Corp.

119 Misc. 570

• Court: New York Supreme Court
• Decided: November 15, 1922
• Status: Published

Opinion

Lewis, J.

The leases provide for the use of the elevator and also to furnish such heat to the demised premises as the plant at present installed will provide.

After the making of the leases, and in 1922, the heating system was changed.

The question for determination is whether the plaintiff, as tenant, is entitled to heat and elevator service during certain seasons of the year for twenty-four hours, or whether the defendant has the right to cut off the heat at five-thirty p. m. during week days and one p. m. on Saturdays and stop the elevator at six p. m.

It is contended that the practical construction put upon the covenants of the lease by the parties should govern its interpretation.

The affidavits in support of the motion satisfy me that prior to the transfer of the premises to the defendant heat and elevator service were furnished by the Bailey Company, the former landlord, to the plaintiff during certain seasons for twenty-four hours in each day.

The Sanitary Code, section 225, provides that

“ It shall be the duty of every person who shall have contracted or undertaken, or shall be bound, to heat, or to furnish heat for any building or portion thereof, occupied as a *• * * business establishment where one or more persons are employed, to heat, or to furnish heat for every occupied room in such building, or portion thereof, so that a minimum temperature of sixty-eight (68) degrees Fahrenheit may be maintained therein at all such times. * * *

“ The term ‘ at all such times ’ as used in this section, unless otherwise provided by a contract or agreement, shall include the time * * * during the usual working hours established and maintained in a building, or portion thereof, occupied as a business establishment, of each day whenever the outer or street temperature shall fall below fifty (50) degrees Fahrenheit.”

The leases are silent as to the time within which heat should be furnished.

A construction which is consistent with and not repugnant to a statute or ordinance should be adopted.

In view of the ordinance and the affidavits, it seems to me that the application should be granted.

The motion for an injunction is granted.

Ordered accordingly.