Appeal from Trial Term, New York County.
Action by the Scheffler Press against David Perlman. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial granted.
Jacob Manheim (Harry A. Gordon, on the brief), for appellant.
Thomas O'Callaghan (Charles G. Cronin, of counsel), for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
The complaint alleges: That the plaintiff is a corporation engaged in the general business of printing, and that the defendant was the owner in fee of the premises known as Nos. 129-133 West Twentieth street. That on January 11, 1905, defendant leased to the plaintiff the first loft of said building for the term of five years at a yearly rental of $2,550, payable in equal monthly payments of $212.50. That the lease contained the following covenant:
" And it is agreed by the said landlord that the carrying capacity of said loft is not less than one hundred and seventy five pounds to the square foot."
That plaintiff took possession of the premises, paid the rent for three months in advance, removed thereto its presses and machinery necessary for the conduct of its business, and remained in possession up to and including the 1st day of March, 1905.
[115 N.Y.S. 41] " Sixth. That on or about the 17th day of February, 1905, the duly authorized inspector of the bureau of buildings of the city of New York, borough of Manhattan, aforesaid, visited said premises so leased to and occupied by this plaintiff, and made an inspection and examination thereof, and found and reported to said bureau that the carrying capacity of said floor or loft so leased to and occupied by this plaintiff was only 125 pounds instead of 175 pounds, as specified in said lease and covenanted by said defendant.
" Seventh. That thereupon an order was made by the said bureau of buildings directing the removal of this plaintiff from the said loft as aforesaid, inasmuch as upon such inspection and examination it was discovered that it would be unsafe to human life to longer allow the said plaintiff to occupy said loft, owing to the insufficiency of the carrying capacity as aforesaid.
" Eighth. That plaintiff on or about the 1st day of March, 1905, was obliged to and did remove under the order of the bureau of buildings aforesaid from said loft, and was compelled to and did expend large sums of money in moving into said loft and removing therefrom, and was greatly inconvenienced and annoyed and suffered great loss in its business by and through the failure of the said defendant to carry out the terms, conditions and covenants of said lease as aforesaid, to its damage in the sum of $3,000."
The lease provides:
" That the said landlord has let unto the said tenant, and the said tenant has hired from the said landlord, the loft above the store *** for the term commencing the first day of February, 1905, *** to be used and occupied for the ...