Kalman v. Cox

Appellate Terms of the Supreme Court of New York

Kalman v. Cox

46 Misc. 589, 92 N.Y.S. 816

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1905

StatusPublished

Cited by3 cases

This text of 46 Misc. 589 (Kalman v. Cox) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kalman v. Cox, 46 Misc. 589, 92 N.Y.S. 816 (N.Y. Ct. App. 1905).

Pincite

Opinion

Scott, J.

The learned justice fell into error in saying that the defendant in this action under the lease held by him from Purdy was under the same covenant which was contained in defendant’s lease to plaintiff. The covenants were not identical in language, and, in my opinion, were not identical in effect. The covenant in Purdy’s lease to defendant was that defendant would “ properly and fully comply with all the orders, rules and regulations of the board of health and other municipal departments as may be issued or apply to said premises.” This covenant was without limitation in terms and may be broad enough to cover the erection of a fire-escape under an order of the tenement-house department, although we are not called upon to determine that question here. The plaintiff’s covenant is that he will “promptly execute and comply with all the statutes, rules, orders, ordinances and regulations of the State or city governments and of any and all their departments and bureaus applicable to said premises, for the correction, prevention and abatement of nuisances or other grievances in, [590]*590upon or connected with said premises during said term.” By this covenant the tenant’s obligation 'respecting orders of a city department is limited to those issued for the “ correction, prevention and abatement of nuisances or other grievances,” and these words are to be taken in their natural and usual sense. The absence of a fire-escape is not a nuisance, as that word is commonly used, and we are referred to no statute which so classifies it. The more generic words “ other grievances ” do not extend the plaintiff’s liability so far as to render him liable for the cost of the fire-escape. To this covenant should be applied the common rule of construction, equally applicable to contracts and statutes that “ when two or more words of analogous meaning are coupled together, they are understood to be used in their cognate sense, express the same relations, and give color and expression to each other.” Wakefield v. Fargo, 90 N. Y. 213, 218. The learned justice expressed himself as of the opinion that it was not within the contemplation' of the parties to provide for an order to do such an important piece of work. What may have been in their minds it is impossible to tell except from their contract, but it seems to me quite clear that the work for which it is sought to hold plaintiff was not within the letter of the agreement.

O’Gorman and Blanchard, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Scott, J.

The learned justice fell into error in saying that the defendant in this action under the lease held by him from Purdy was under the same covenant which was contained in defendant’s lease to plaintiff. The covenants were not identical in language, and, in my opinion, were not identical in effect. The covenant in Purdy’s lease to defendant was that defendant would “ properly and fully comply with all the orders, rules and regulations of the board of health and other municipal departments as may be issued or apply to said premises.” This covenant was without limitation in terms and may be broad enough to cover the erection of a fire-escape under an order of the tenement-house department, although we are not called upon to determine that question here. The plaintiff’s covenant is that he will “promptly execute and comply with all the statutes, rules, orders, ordinances and regulations of the State or city governments and of any and all their departments and bureaus applicable to said premises, for the correction, prevention and abatement of nuisances or other grievances in, [590]*590upon or connected with said premises during said term.” By this covenant the tenant’s obligation 'respecting orders of a city department is limited to those issued for the “ correction, prevention and abatement of nuisances or other grievances,” and these words are to be taken in their natural and usual sense. The absence of a fire-escape is not a nuisance, as that word is commonly used, and we are referred to no statute which so classifies it. The more generic words “ other grievances ” do not extend the plaintiff’s liability so far as to render him liable for the cost of the fire-escape. To this covenant should be applied the common rule of construction, equally applicable to contracts and statutes that “ when two or more words of analogous meaning are coupled together, they are understood to be used in their cognate sense, express the same relations, and give color and expression to each other.” Wakefield v. Fargo, 90 N. Y. 213, 218. The learned justice expressed himself as of the opinion that it was not within the contemplation' of the parties to provide for an order to do such an important piece of work. What may have been in their minds it is impossible to tell except from their contract, but it seems to me quite clear that the work for which it is sought to hold plaintiff was not within the letter of the agreement.

O’Gorman and Blanchard, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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Bluebook (online)

46 Misc. 589, 92 N.Y.S. 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalman-v-cox-nyappterm-1905.

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