West v. Johnson

23 A.D.2d 765, 258 N.Y.S.2d 625, 1965 N.Y. App. Div. LEXIS 4527

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1965
• Status: Published

Opinion

In an action to declare the respective rights of the parties under the renewal provisions of a written lease of certain real property, the plaintiff being the lessee’s assignee and the defendant being the lessor, in which action the defendant lessor counterclaimed for a declaration in his favor, the parties cross-appeal as follows from a judgment of the Supreme Court, Westchester County, entered August 5, 1964 after a nonjury trial, upon the court’s opinion-decision: (1) The defendant appeals from so much of the judgment as declared: (la) thiat the plaintiff properly exercised his right to renew the lease; (b) that such renewal must he recognized by the defendant; (e) that “the appraisal for which the lease provides means an appraisal of the total annual rental value of the land alone;” and (d) that the annual net rental to be paid during the renewed term “ will be the total annual rental Value of the land alone, less that portion of the real estate taxes chargeable to the land and made payable by the plaintiff under the terms of the lease ”. (2) The plaintiff appeals from so much of the judgment as declared that the provision in the lease for “limitation of the rent for the renewed term to 5% of the last assessment placed upon the land applied only to a negotiated rental and not to one determined by an appraisal”. Judgment modified on the law and facts as follows: (1) by striMng out from the last portion of the final decretal paragraph the provision to the effect that during the renewed term of the lease, as against the annual net rental (found by the appraiser) the plaintiff shall be entitled to a credit equal to “that portion of the real "estate taxes chargeable to the land and made payable by the plaintiff under the terms of the lease”; and (2) by adding a new subparagraph declaring that during the renewed term of the lease the plaintiff shall also continue to be liable for the payment of the taxes and the other items specified in paragraph “II” of such lease. As so modified, the judgment, insofar as appealed from by the respective parties, is affirmed, without costs. Findings of fact implicit or contained in the court’s opinion-decision which may be inconsistent hern-1 with are reversed, and new findings are made as indicated herein. The lease, as well as the judgment, provides for a net rental which presupposes payment by the lessee (plaintiff) of the taxes in addition to the rent. The stricken portion of the judgment, however, in effect provided for a deduction of such taxes during the renewed term. As any such deduction would be inconsistent with the terms of the lease (particularly piar. II) and contrary to the intent of the lease, we modify the judgment only to eliminate such inconsistency and to make clear that the plaintiffs obligations under said paragraph of the lease will continue during the renewed term. Beldock, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.