64 N.Y.S. 617 | N.Y. App. Div. | 1900
Lead Opinion
The action was brought to recover rent for certain premises in the city of New York for the month commencing December 1, 1896..
When the defendant rested its counsel, in answer to a question as to which of the two defenses set up in the answer the defendant would elect to rely upon, stated that he preferred to stand upon the question of surrender and acceptance; that the defendant had •abandoned the premises and had shown through their own concession that the plaintiff went in and took possession. Plaintiff’s •counsel then moved to direct a verdict for the plaintiff, when defendant’s counsel stated that he wished to submit to the jury the question whether the landlord accepted the premises and took upon himself to exercise acts of dominion upon them, and whether he had not entered into possession. This was denied, and the court then directed a verdict for the plaintiff.
It would seem that the court was right in this disposition of the •question. There is not the slightest evidence of an eviction, nor would the evidence justify a finding of a surrender of the premises by the tenant and an acceptance of such surrender by the landlord. Under the lease the defendant was required to make all repairs to the premises, and the fact that the building was out of repair was itself evidence that the defendant had failed to comply with its •covenant to make the necessary repairs and to keep the building in good condition. When the building department condemned the building the plaintiff was entirely within his right when he called upon the defendant to make the necessary repairs to the building under the covenants contained in the lease. The refusal of the •defendant to make such repairs, with the statement of the defendant’s representative that it would go on and pay the rent if the plaintiff would make the repairs, justified the plaintiff in entering upon the premises to make Such repairs; and such an entry coulc not be considered as an acceptance of a surrender of the premises by
The judgment and order appealed from should, therefore, be: affirmed, with costs. . ' ■
. Patterson, Rumsey and Hatch, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
I dissent. The attempt to rent the building, there being no-reservation in the lease, was an acceptance of the surrender of the premises.
.. Judgment and order affirmed, with costs.