While I concede that the question involved in this appeal is a close and doubtful one, which is not precisely covered by any authority to which our attention has been called, I am disposed to think that under the terms of the lease the tenant should pay the half of the annual taxes for 1914, which by virtue of the amendment of the Greater New York Charter (Laws of 1901, chap. 466, § 914, as amd. by Laws of 1911, chap. 455) became payable on May 1, 1914. The defendant’s lease ran until noon on said May first and the tax became payable on May 1, 1914, that is, on the first hour of that day. So the one-half of the annual tax became payable before the expiration of the lease. The lessee’s covenant was not to pay all the taxes which might be imposed during the term of the lease, as was the covenant considered in Ogden v. Getty (100 App. Div. 430), but to pay so much of the tax imposed during the term as should become payable within the term. The precise agreement was that the lessee would pay all annual taxes as should be imposed during the term “as soon as they become due and payable.” The payment of one-half the tax for the year, therefore, fell within the letter of the covenant.
Of course it is entirely probable that, when the lease was made, neither the lessors nor the lessee anticipated that any change would be made in the law providing for the payment of the annual taxes, but they should have known that such a change was within the power of the Legislature and might, occur, and they took no means to meet the contingency. It is also entirely probable that the lessee expected to be called upon to pay only five years’ taxes for a five-year term, but on the other hand the lessors expected to receive their property back. at the end of the term unincumbered by a tax lien, and provided in plain language that they should so receive it.
I agree that no case has been made for a reformation of the lease, and without a reformation it seems to require payment by the defendant of one-half of the tax for 1914, with interest.
Judgment affirmed, with costs.