In my opinion the cost of removing the unlawful obstruction upon the public highway was an expense to be borne by the owner of the building, and not by the tenant. We so held in City of New York v. United States Trust Co. (116 App. Div. 349), and I think that the reasoning in that case is equally applicable to this. The provision in the lease in this case upon which plaintiff relies is that the tenant “ will promptly comply at its own expense with all orders, notices, regulations or requirements of any Municipal, State or other Authority or Departments or of the Hew York Board of Fire Underwriters with reference to said premises.” The corresponding covenant on the part of the tenant in the United States Trust Company Case (supra) was that he would comply with “all the rules, regulations and ordinances of the Board of Health, Fire Department and Building Department, or other city departments and city ordinances applicable to said premises.” If there be any substantial difference in the meaning of the two covenants I am unable to find it. It is agreed in the present case that during the erection of the building the plans therefor were submitted to the defendant. I fail to see any significance in this fact except as evidence that defendant when it took the lease knew that the show windows projected upon the highway. But it did not need an examination of the plans to learn that fact as it was evident upon inspection. So also in the case cited above the encroachment existed when the tenant took the lease, and he accepted it with clear notice. As I look at it the removal of these encroachments was not within the fair meaning of the clause in the lease relied upon. They were from the beginning unlawful encroachments and public nuisances. (People ex rel. Brown*572ing, King & Co. v. Stover, 145 App. Div. 259; affd., 203 N. Y. 613.) The submission does not state that any permit was ever given by any municipal authority for the erection of the encroachments, and, if the case last cited was well decided, no municipal or other authority ever could have lawfully authorized such erection. The resolutions of the board of estimate and apportionment, attached to the submission, therefore, had no bearing upon these particular encroachments, which were unlawful from the beginning and which it was the duty of the borough president to remove whether the. board of estimate and apportionment directed him to do so or not.
If the knowledge of the plans on the part of the defendant be considered an acquiescence and co-operation on its part in the erection of the encroachment and the creation thereby of the public nuisance, it is well settled that the law will not decree contribution between joint tort feasors. The cases relied upon by plaintiff have no bearing upon the question. (Markham v. Stevenson Brewing Co., 104 App. Div. 420; Bushwick Reatty Co. v. Sanitary Fire Proofing Co., 129 id. 533.) They arose under the tenant’s covenant to make repairs. This is not a case of making repairs, but of making a change in the structure of the building.
Judgment should be rendered for the defendant.
Judgment ordered for plaintiff as directed in opinion, with costs. Order to be settled on notice.