137 N.Y.S. 912 | N.Y. App. Term. | 1912
The plaintiff sues to recover rent for the months of December, 1910, and January, 1911, for a loft owned by him and occupied by the defendant as tenant under a written lease for a period of two years, at the monthly rental of $113.33, payable on the first day of each month. In the lease, the lessor'covenanted that, in the event of damage to the demised premises by fire, he would repair the damage forthwith. On December 12, 1910, the said premises were damaged by fire to an extent rendering them untenantable. A dispute arose between the landlord and the tenant as to whether the landlord complied with the terms of the lease as to repairing the damage. The landlord insisted that he was complying with this provision of the lease, and demanded the rent. The tenant claimed that the failure of the landlord to repair the premises constituted such a breach of this covenant of the lease as to give him a claim against the landlord for the damages which he suffered. On December 23, 1910, the defendant sent the landlord a check for fifty-three dollars and forty cents, which check stated upon its face that it was in full payment of all claims. The defendant’s letter, which accompanied the check, stated that the amount of fifty-three dollars and forty cents was the amount of rent for the demised premises up to December 12, 1910, the day of the fire, and that he considered the relation of landlord and tenant terminated. The check inclosed in this letter the plaintiff immediately returned, with a statement that he declined to accept the amount named in the check in full satisfaction of his claim for rent. The defendant returned the check to the
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.
Guy and Bijub, JJ., concur
Judgment reversed and new trial ordered, with costs to appellant to abide event.