[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 77
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 78 The plaintiff had a right to collect wharfage for three years on the payment of rent quarterly in advance in accordance with the terms of sale and the agreement entered into upon such sale. The plaintiff agreed not to make any claim consequent upon the premises being occupied for the repairing purposes provided for in the terms of sale. By the memorandum signed at the time, the plaintiff agreed to be bound by the terms and conditions of the published notice of sale. Among these terms was the provision for making repairs prior to the commencement of the term of the lease, or as soon thereafter as practical, but such premises, however, were to be taken in the condition in which they might be at the *Page 80 commencement of the term for which they were leased, and no claim was to be allowed that such premises were not in a suitable condition, and it was expressly provided that no claim for loss of wharfage or otherwise, should be made consequent upon the premises being occupied for repairing or dredging purposes.
The repairs were made under this provision.
This agreement would seem to be conclusive upon the plaintiff's right to relief in this action.
The appellant states that he makes no claim for the loss of wharfage or otherwise, but claims that where the landlord takes exclusive possession of the demised premises he cannot have rent for such time, and he relies upon the clause in the lease by which it is provided that in case the defendant shall take temporary possession of a portion or the whole for its purposes, it shall make a reasonable reduction of the rent.
The provisions in the lease for the taking of the premises by the dock department are, First, that if the dock department during the term decides to occupy, for its own use all, or any part of the premises, or shall conclude to change the bulk-head line, then upon being served with a written demand, the lessee will vacate the whole premises or the portion demanded, and,second, the dock department has the right to enter the premises to make alterations or extensions of the same.
Neither of these provisions bring the case considered within the covenant for the deduction of the rent.
The occupation of the dock department for the purpose of repairs was not a taking for its own use, nor for a change of the bulk-head, nor for an alteration or extension of the premises within the provisions cited. The provision which relates to the deduction of the rent is intended for a case where possession is taken by the arbitrary exercise of the power reserved by the dock department to resume the possession of the premises for its own purposes. Such a possession was not taken, and all that was done was to enter for repairs under the agreement made by plaintiff in accepting the terms and conditions of sale, and for the benefit of the plaintiff and of the property. No provision being made in the lease for the suspension *Page 81 of rent while repairs were being made in accordance with the terms of the lease, the rule undoubtedly is that the tenant can have no deduction for the same during that period. Giving a reasonable construction to the agreement between the parties, the conclusion is irresistible that the plaintiff has no legal right to a deduction from the rent and cannot maintain this action.
The judgment should be affirmed.
All concur.
Judgment affirmed.