38 A.D. 441 | N.Y. App. Div. | 1899
The plaintiff sued for,rent. The defendant interposed á counterclaim for damages alleged 'to have been sustained by reason of' the plaintiff’s breach of her covenant to repair the roof of the demised premises. The averment in .the answer was that such damages were occasioned by - “ the rain, coming through the roof thereof into the store of the defendant in rainy weather, and upon his goods, wares and merchandise therein contained.” At the close of the evidence the learned trial court, on the. authority of Schick v. Fleischhauer (26 App. Div. 210), directed a verdict in favor of the plaintiff for the full amount of the rent sued for, thus in effect holding that .the defendant Could not-maintain his counterclaim for the damages suffered by his goods in consequence of the leaky condition of the roof.
.1 think that the lease, under a fair construction of its language, obligated the landlord to keep the roof in repair, and that this obligation embraced the roof of the extension as well as the roof of the principal building. The. proof established a breach of the covenant, and the direction of a verdict in disregard of the counterclaim evidently proceeded on the theory that a landlord’s failure to perform his covenant to repair does not authorize a recovery by the tenant on account ,of in jury inflicted upon his goods by the weather in consequence of the defective condition of the premises. The case cited as authority for the'action of the--trial court related to personal
But even if the law made the landlord ordinarily liable for injury to the tenant’s personal property in such cases, the circumstances of this particular case precluded any recovery or the maintenance of a counterclaim on account of the damage done by the rain to the defendant’s goods. The defendant himself testified that he knew of the condition of the leaky roof and skylight months before the time when his goods were injured. “A tenant whose landlord has agreed to put the premises in repair but has failed to do so, knowing that his property will be exposed to injuries from storms, or otherwise endangered, if left upon the premises, has no right to take the hazard, and if he does and his property is injured, he cannot recover of the landlord therefor.” (Cook v. Soule, 56 N. Y. 420, 423.)
The defendant’s measure of damages in a case like the present would seem to be the difference between the rental value of .the premises as they were and the rental value thereof as they would have been if repaired in accordance with the landlord’s covenant; or, if the tenant had actually made the stipulated repairs himself, he could recover or recoup the necessary expenditure in making such repairs. (Thomson-Houston Electric Co. v. Durant Land Improvement Co., 144 N. Y. 34, 47, 48.) The defendant herein did prove that he had expended forty-five dollars and sixty-four cents for repairing roofs, but a portion of the work thus paid for was done upon a neighboring building not belonging to this plaintiff, and the evidence did not show how much was spent upon the roof of the plaintiff’s premises. The proof was not sufficiently definite, therefore, to permit any deduction from the rent on the theory that the defendant was entitled to counterclaim the expense of repairs actu
From what has been said it will be perceived that, as the case . stood at the close of the evidence, .the court was justified in ignoring the counterclaim and directing a verdict for the month's rent claimed.- The record before us, however, leaves no doubt that ■ the only counterclaim in behalf of the defendant which was litigated. in this action was a counterclaim for damage to his goods, and that the judgment should in nowise conclude him from hereafter asserting any other claim which he may have arising out of the lessened rental value of the premises, or out of his expenditures for actual repairs which the landlord ought to have made. This should. be-left available to him, either by way of recoupment in any further suit for rent, or by an independent action against his landlord.. The defendant’s rights in this respect may be preserved by affirming the present judgment without prejudice to such claim.
All concurred.
Judgment and order affirmed, with costs, but without - prejudice to defendant’s claim against the plaintiff for rental damage or actual and necessary expenditures for repairs.