Further, under the ejusdem generis rule, "a series of specific words describing things or concepts of a particular sort are used to explain the meaning of a general one in the same series" (Matter of Riefberg, 558 N.Y.2d 134. 141. 459 N.Y.S.2d 739, 743 [1983]; Olivieri v Barnes & Noble, Inc., 211 A.D.3d 1525, 1528, 182 N.Y.S.3d 414, 417 [4th Dept 2022]). Plaintiff s reliance on the doctrine of ejusdem generis is unavailing (see Cohen v E. & J. Bass, 246 NY 270, 158 N.E. 618 [1928]; Certain Underwriters at Lloyd's, London v Forty Seventh Fifth Co. LLC, 213 A.D.3d 481, 183 N.Y.S.3d 89 [1st Dept 2023 J). Here, "[w]ords of general description do not follow-words of particular description in relation to the same subject matter" (see Cohen v E. & J. Bass, 246 NY at 276. 158 NE at 620).
As the New York high court has written, judges have long sought the intention of the parties, "not as much from the letter of thelease as from a reasonable construction of their agreement, having in mind the rent payable, the terms of the lease, the nature of the construction required, the relative benefit thereof to the respective parties, and what the parties had in contemplation when they executed this agreement." ( Cohen v. E. J. Bass (1927) 246 N.Y. 270 [ 158 N.E. 618, 620], italics added.) (5a) We recognized explicitly in Sewell, supra, 70 Cal.2d 666, that in assessing the terms and the circumstances surrounding a nonresidential lease transaction, courts usually apply a handful of factors as "clues" or indicators as to whether the parties agreed that the lessee "assumed certain risks, despite the use of unqualified language."
( National Surety Co. v. Manhattan Co., supra, p. 261.) "`The theory of the rule that a party who is liable over and has notice and an opportunity to defend an action is bound by the judgment is not limited to cases of direct liability or suretyship, or those where the liability is predicated upon the same contract or duty. * * *' ( Prescott v. LeConte, 83 App. Div. 482, 490; affd., 178 N.Y. 585.)" ( Cohen v. Bass, Inc., 246 N.Y. 270, 278.) The same opinion says, in substance, that the rule is one of sound public policy, existing to the end that differing judicial decisions may not be made on the same state of facts, and to prevent their litigation over and over in different actions. It continues: "`It is not essential that the party who is ultimately liable shall be liable on the same contract or could have been held liable in the former action, or that he shall be directly a party to the transaction by which the person to whom he is liable over becomes obligated; it is sufficient that between him and the party sued, the duty for a violation of which the action is brought rests primarily upon him, and that the material facts have been litigated in the former action of which he had notice and an opportunity to defend.'"
Perhaps appellant further had in mind the provisions of paragraphs 11 and 14 as repeated in part in the 1929 lease. Under these last-mentioned paragraphs an obligation to erect a sprinkler system would have arisen at any time that its installation might have been required by the authorities therein mentioned. (See Cohen v. E. J. Bass, Inc., 246 N.Y. 270 [ 158 N.E. 618].) It was therefore quite logical to require that the lessee under the 1929 lease should "maintain" any sprinkler system erected as specifically required by the 1924 lease or that might be erected as contingently required under said paragraphs of the 1929 lease.
Further, the Freehold lease's language prohibited (p 625) "any alterations" without the landlord's express permission. The violation of an express covenant not to make alterations is a substantial violation (see Deutsch v Hoe Estate Co., 174 App. Div. 685; Holden v O'Brien, 209 App. Div. 266, affd 240 N.Y. 560; Cohen v Bass, Inc., 246 N.Y. 270; First Nat. Stores v Yellowstone Shopping Center, 21 N.Y.2d 630; Sigsbee Holding Corp. v Canavan, 39 Misc.2d 465, affd by App Term, 1st dept., Oct., 1963, No. 171; see, also, Bentley, An Alternative Residential Lease, 74 Col L Rev 836, 840). The present case proceeds on a different legal footing.
A lease, like any other contract, is to be interpreted in light of the purposes sought to be attained by the parties. ( Cohen v. Bass, Inc., 246 N.Y. 270; Matter of Loew's Buffalo Theatres, 233 N.Y. 495; Buchanan v. Whitman, 151 N.Y. 253; 4 Williston, Contracts [3d ed.], § 619, pp. 730-733; 51C C.J.S., Landlord and Tenant, § 232, subd. [1].) "An agreement of lease possesses no peculiar sanctity requiring the application of rules of construction different from those applicable to an ordinary contract."
The cost of these repairs or reconstruction equals within a few dollars the amount of the three years' rent. That such a liability was to be cast upon by the tenant by this lease could hardly have been within the contemplation of the parties.Cohen v. Bass, 246 N.Y. 270, 158 N.E. 618, 620 (N.Y.App. 1927). The following language in Scott v. Prazma, 555 P.2d 571 (Wyo. 1976), is also here appropriate.
Defendant contends that, as a matter of law, provisions in the lease impose the burden of making the repairs on plaintiff. The question of which party to a lease is obligated to comply with an order of a governmental agency which requires construction and/or repair at the leased premises depends on the intentions of the parties as expressed in the lease, interpreted in light of the surrounding circumstances ( see, Cohen v. E J Bass, 246 N.Y. 270, 277; Deutsch v. Hoe Estate Co., 174 App. Div. 685, 690-691). Defendant points out two provisions in the lease which, she contends, unambiguously require plaintiff to make the subject repairs:
Rather than resulting from the character of defendant's use of the premises, any occupancy of the premises, by any tenant, would have required the installation of a new sewer system. It is that factor which distinguishes this case from the line of authority represented by Cohen v. E. J. Bass ( 246 N.Y. 270), wherein courts have imposed upon tenants the obligation of making structural alterations or repairs to comply with local laws or regulations when such compliance was required because of the character of a tenant's occupancy. Here, alteration of the sewer system constitutes an integral structual change which affects the integrity and value of the building, regardless of the lessee or how the building is used. As such, the clear and unambiguous language contained in section 10.3 leaves no doubt that the defendant tenant has no obligation to bear the cost of complying with the EPA directive.
Plaintiff contends that the defendant's lease stood as security in order to justify plaintiff's recovery prior to foreclosure; however, nowhere is there clear evidence that this was the intention of the parties, and the intention of the parties raises a question of fact. "A lease like any other contract, is to be interpreted in light of the purposes sought to be attained by the parties." (Cohen v Bass, Inc., 246 N.Y. 270). Further, approximately two years after the alleged breach, plaintiff entered into a new agreement with the owners.