There is no dispute about the facts in this case, and the appeal presents but a single question of law for determination. The action is brought to recover rent for the second loft of certain buildings in the borough of Manhattan leased by the plaintiff to the defendant, and also to recover the water rents for that portion of the premises. The action was commenced in March, 1905, and the water rents were for the five preceding years. After the commencement of the action the defendant paid the rent, leaving the claim, for. the water taxes alone to be litigated, and the justice hás dismissed the complaint on the merits, on the ground that the right to recover is not given by the lease.
By the covenant in the lease the defendant agrees as follows: “ And also to pay any rent or charge which is or may be assessed or imposed according to law, upon the said premises, for the Croton water, on or as the same may become due and payable by meter measurement or otherwise in each year during the term, and if not so paid the same shall be added to the month’s rent then due.” *364There were various other tenants in the building. It appears from the evidence that the city officials in charge of the water-supply placed a water meter in the building, through 'which all the water passed which was used by the various tenants. The plaintiff, however, installed a separate meter dor the defendant’s loft, and it is not disputed that that meter accurately registered the amount of water which was used by him. ■ The demand.is for payment, for that amount of water charged at the city’s price.. It further appears that the city officials refused to make out and present bills against the tenants separately or for the quantity of water used by each separately, but'made one charge, against the plaintiff for the entire consumption. In these, circumstances the justice held in effect that no charge had ever been assessed or imposed for the water used by the defendant,, and that the contract between the parties; as made did not provide for the payment by the defendant of a charge for the just proportion of the water used by him .when accurately measured and ascertained, but only when actually assessed or imposed as a separate and distin'ct item by the city authorities.
It seems quite clear to me that the contract ¡between -the parties provided- in express terms that the defendant should, pay to the plaintiff that sum of money which would represent the proportionate share of the entire water supply furnished to the buildings which would be chargeable at the city’s price to the second loft as manifested by the reading of his meter. In Bristol v. Hammacher (30 Misc. Rep. 426) it was held by the' Appellate Term that under a similar covenant the landlord could not recover an arbitrary proportion of ‘the whole water rent, but in that case, while there were several tenants in the building using the water there was but one water meter, and the attempt made in the action was to recover frotn the defendants a proportionate share of "the entire charge based upon the amount of water which they were assumed to have, used by arbitrary estimate. It was held that the only manner- in which the water rent could have been lawfully “ imposed ”, upon the.defendants would have been by,the landlord’s installment of a separate water meter for them, which would have shown the precisé amount of water used by them. The logic of the decision is that a recovery could be had where a separate water meter is installed:
The court said (p. 428): “ In the case at bar, the clause in the *365lease contains an express covenant. It is plain and certain in its provisions and contains neither patent nor latent ambiguity, and no extrinsic testimony is necessary to determine its meaning. It obligates the defendants to pay only such charges, for the use of water, as might be ‘ imposed according to law ’ upon the demised premises. It is evident that there could be no liability, on the part of the defendants under that covenant in the lease, until such water rent was lawfully assessed upon that portion of the premises occupied by them under the lease. This could have been ascertained by the plaintiff, by the placing of a water meter, so that the actual amount of water used by the defendants could have been determined and they be lawfully charged therewith. Sections 350 and 352 of the Consolidation Act (Laws of 1882, chap. 410*) provide that the commissioner of public.works shall be authorized to cause water meters to be placed in buildings of this character, and scales of rent to be fixed for water used, as determined by the meter. In that way the defendants could have been lawfully charged with the amount of water used by them, and their liability fixed under their covenant in the lease.” The provisions of the Consolidation Act, cited by the court, are substantially re-enacted jn sections 473 and 475 of “ The Greater New York Charter ” (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, Laws of 1902, chap. 509, and Laws of 1904, chap. 600).
In the case at bar the conduct of the parties clearly indicates the interpretation which they placed upon the clause of the lease which is in question. They understood and intended that the defendant should pay to the plaintiff, for the amount of water actually used by the former as indicated by the meter, his proportionate share of the rent or charge which' should be assessed or imposed according to law by the city authorities upon the entire premises.
The judgment should be reversed.
Woodward, Jenks, Gaynor and Rich, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
Laws of 1882, chap. 410, § 350, as amd. by Laws of 1887, chap. 559; Id. § 352. — [Rep.