56 N.Y.S. 423 | N.Y. App. Div. | 1899
The plaintiff sued for rent. The defendant interposed a 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, 49 N. Y. Supp. 962, 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 Ms counterclaim for the damages suffered by his goods in consequence of the leaky condition of the roof.
I 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,
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. All concur.