23 Misc. 126 | N.Y. App. Term. | 1898
The plaintiff claims to recover on the ground that the -lease was canceled by reason of the fact that the premises were so injured by fire, on September 20, 1896, as to become untenantable and unfitted to carry on the business for which they were rented, and that the defendant failed to cause the 'damage thereto to he forthwith repaired. This question is presented: Was the emergency, contemplated by the statute of 1860, chapter 315,
It was the conclusion of the trial justice that the covenant under consideration did not avoid the operation of the statute, ¡and did not.create a case where the parties have “ otherwise expressly provided by written .agreement or covenant.”
In Butler v. Kidder, 87 N. Y. 99, the Court of Appeals hold that it is not essential, in order to exclude the lessee from the benefit of the statute, that there should be a covenant, in .express terms, obligating him to pay rent, although the building becomes untenantable; but it is sufficient if the intention to take away such benefit is clearly shown on the face of the lease, as where it appears that the parties, having in mind the contingency mentioned in the statute, inserted provisions or covenants inconsistent with the right of surrender.
We think it must be,said that the parties to this lease provided, by express covenant, for the contingency of fire, and that this, therefore, furnishes the measure of the tenant’s liability, and that the statute has no application. See Tocci v. Powell, 75 N. Y. St. Repr. 905; Butler v. Kidder, supra. It. is necessary, therefore, to revert to the covenant under consideration and to the incidents that happened, as established by the testimony, in order ta determine the rights of the parties.
The fact is fully established that the premises were rendered untenantable .by reason of 'the damage occasioned by the fire, and it further appears that the fire was not the result of any negligence or want ¡of ¡care on the part of the tenant. The covenant in the lease imposed upon the landlord the duty of causing the damage to be repaired forthwith. “Forthwith” means within a reasonable
It .appears from the testimony that the fire occurred -oh the morning 'of the 20th of September, and that the same was brought to the knowledge of the landlord almost immediately; but that no repairs whatever had been done up to the 29th of September, when the tenant abandoned the premises. The witness Diebold, a baker, who was the actual tenant and occupant 'of the premises, testifies: “ Q. -How soon after the fife did you see Mr. Harway (the agent and representative of the landlord) ? A. On Sunday the fire was> and on Monday I saw Mr. Harway; I had a conversation with him in .regard to putting the place in order; not the first time, but the second time ,he came around; Wednesday or Thursday; I ¿asked him if he had got through with-his insurance; he said no; I asked him if to was ¡going to have the place fixed up- again, so that I could start Up again; he said,- “I don’t know,”' and turned around and walked away; and I had no talk with him after- that. Q. And he didn’t come to see you any more? : A. Ho, sir. Q. This Monday that you speak ¡of, where was he or you?' A. In front :of -the house, and the second time too in front of the house. Q. Was the place in such a condition that you ■ could not carry on your business? A. Yes, sir; I couldn’t carry on business. Q. How long after the fire did you remain there waiting for Mrs. Harway to put the place in proper shape for you to carry on business? A. From September 2.0th to September 29th; then
It must be said that the tenant waited a .reasonable time for the landlord' to commence the work of repair, in accordance with the provisions of the lease; that the landlord took no steps to repair the untenantable premises and was in default in not performing the condition precedent with the diligence and promptness required; that the tenant was deprived of the beneficial use and enjoyment of the demised premises, and was justified in moving out. It appears from the record that the landlord never demanded any rent after the fire occurred. Had the landlord brought an action for the rent, !we think the tenant could have defended as upon an eviction. See Myers v. Burns, 35 N. Y. 269; Sparks v. Bassett, 49 N. Y. Supr. Ct. 270; 2 Taylor on Land. & Ten. (8th ed.), p. 381; Tallman v. Murphy, 120 N. Y. 346; O’Gorman v. Harby, 75 N. Y. St. Repr. 911.
While it is true that, after the breach of the covenant to repair, on the part of the landlord, the tenant had the right to perform the work himself, and recover the cost in an action for that purpose, or upon a counterclaim in an action for the rent, he, nevertheless, was not bound to follow that remedy. He could choose between that remedy and the right to move out, as either of those courses were open to him under' the law. See Tallman v. Murphy, supra; O’Gorman v. Harby, supra; Myers v. Burns, supra; Sparks v. Bassett, supra. He elected the latter. Hnder the circumstances, we are of opinion that the tenant was justified in regarding the lease as canceled, and his liability thereunder as terminated; and that the plaintiff is entitled to recover back from the defendant the sum of $250, which was deposited by him as security.
Bor the reasons above stated, the judgment appealed from should be affirmed, with coste to the respondent.
Beekmajst, P. J., and Giegkerich, J., concur.
Judgment affirmed, with costs, to respondent.