Mills v. Baehr's Executors

24 Wend. 254

• Court: New York Supreme Court
• Decided: July 15, 1840
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

It is apparent from the language of the exception in the covenant to pay the rent, that it does not reach a disturbance'of the premises by the proceedings of the corporation of New-Yorlc, relating to the widening and opening of streets. The term “ other casual, ty,” refers to some fortuitous interruption of the use. This is clear, not only upon the import of the words, but from the connection in which they are found. No casualty has intervened. On the contrary, whatever has taken place, has been in pursuance of established law, and might have been, . and probably was, anticipated. Neither does the interpretation [ *256 ] come within the spirit or intent of the "exception. In judgment of law, the widening of streets in the city works no injury to the lessee. Full compensation is made for all damages sustained. Nearly $6000 have beep awarded in this case to him and his sub-tenants, for the disturbance. The principle upon which such compensation is to be made, will be found in Gillespie v. Thomas, 15 Wendell, 464; and it will be seen that in the distribution between the landlord and tenant, the latter is still to pay a rateable rent for the portion of the premises not taken for the improvement.

But it is insisted that according to the evidence, the remaining premises for the unexpired term were of no value. That was a question of fact for the referees, and their determination cannot be reviewed on error. It was conceded if any value was shewn, the amount could not be questioned ; but whether any value or not, is equally a question of fact. The case shews, the building might have been cut down to conform with the new line of the street, and repaired so as to have rented during the unexpired term for a sum exceeding the expense.

Judgment affirmed.