88 N.Y.S. 144 | N.Y. App. Term. | 1904
The defendant concedes the right of the plaintiffs to recover the amount of rent sued for, and relies wholly on his counterclaim for damages based upon plaintiffs’ breach of covenant to repair. Properly construed, the lease provides that if, in case of fire, the damages to the demised premises shall be so extensive as to render them untenantable, the rents shall be proportionately paid up to the time of such damage, and shall from thenceforth cease until such time as the premises shall be put in good repair, but that the lessee’s occupation of the premises shall be deemed conclusive proof of their tenantability. By a separate, distinct, and independent clause it is provided that, in case of only partial, destruction of the demised premises by fire, the lessors shall make-all repairs as speedily as possible. Under this construction of the lease the case should have been submitted to the jury, so far as defendant’s counterclaim was concerned, because upon the evidence adduced by the defendant a question of fact was presented as to whether the plaintiffs made the repairs, rendered necessary by the occurrence of a fire, as speedily as possible, and, if they did not, as to the amount of damage sustained by the defendant in consequence
The judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.