91 N.Y.S. 547 | N.Y. App. Div. | 1905
The plaintiff "as assignee of the lessor of certain premises in the borough of Brooklyn sues to recover for the alleged breach of a covenant to repair made by the defendant as lessee. The lease contains these provisions : “And the lessee agrees, as soon as practicable, to put the plumbing work and the premises generally in good repair, and protect the same, and to replace all glass which may be found broken on said premises at the time of the lessee taking possession. And the lessee agrees that it will, during the term of this lease, keep the plumbing work, pipes, glass, fences and the premises generally in good repair, and at the expiration of the term quit and surrender the premises in as good a state and condition as reaspn
The lease was executed and possession of the ■ premises delivered to the defendant in tlie spring .of 1903. The plaintiff claims that at that time one of the gable walls was out of plumb. In the fall of 1903, during the continuance of the term, it became so far out of pliimb that it was condemned by the municipal authorities as unsafe, and it accordingly became.necessary to rebuild it. After a fruitless attempt to induce the defendant to rebuild the wall the work was done by or on behalf of the plaintiff, and the action is to recover the amount expanded ifi the doing of that. work.
The building is very old and there is no claim that the defect was occasioned by the defendant. On the contrary the dilapidation was undoubtedly the result of time and wear. The plaintiff proved by the building ’ inspector who. had condemned the old wall that “in. the condition it was in ” it “ could not 1)6 repaired so as to be safe.” It was a wall twenty-eight feet in depth, about five feet high of brick and above that height of frame, but in. restoring it the plaintiff, for what were doubtless sound economical reasons, built it about twelve feet high of brick. The only question presented is whether the defendant’s .covenants bound it to make this; necessary -change in the demised building. ' ■
I think, not. I think that under the authorities the covenants on the part of the defendant are covenants to make ordinary, not extraordinary, repairs, aiid are to be limited to repairs as such' and not to the work of restoration or renewal, where decay is so extensive- as to fender repair in the ordinary sense impossible. Any other construction would require a total rebuilding by the tenant in case the house fell to pieces, which would bé in conflict with our recent decision in Ducker v. Del Genovese (93 App. Div. 575) and .also With a further-provision in the lease which'binds the lessor to repair in case the premises shall be partially damaged by. fire, and which also provides that in cáse the building be totally destroyed or so damaged by fire as to be untenantable, the lessee'.may surrender possession, and the lease shall end.
t The case of Lockrow v. Horgan, (58 N. Y. 635), cited by the appellant, might require a contrary conclusion, if it should be deemed controlling. There the tenant under a covenant'to make
The requirement in the case at bar that the lessee shall make general repairs is set forth expressly in connection with the plumbing work, pipes, glass and fences of the property, and that connection tends to indicate that it is the ordinary repairs necessitated by the ravages of ordinary use which were in .mind, rather than radical changes in the structure of a permanent, substantial and unusual character.
The judgment should be affirmed.
Bartlett, Woodward, Jenks and Hooker, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.