According to the decision in Myers v. Barns (36 N.Y. 269), the covenant in question required the defendant not only to keep the premises in good repair, but to put them in that condition. It might well have been submitted to the jury whether, in a warehouse of the size, condition and location of the one in question, water-tight floors were not indispensable, and whether it was not, therefore, the duty of the defendant so to complete his building. The judge did not, however, go to the length of either of these propositions. He simply charged that it was the duty of the defendant to keep the floors tight, if they were so when originally constructed, and if the business of the plaintiffs required it. This was a construction of the contract to repair, quite favorable to the defendant, and to which he took no exception on the trial. He can, therefore, make none now.
The appellant insists in his first point, that the defendant was not bound to caulk the floors, thereby making them water-tight, which they before were not. I understand the
judge's charge to be in accordance with this theory. He charged that the defendant was not bound to keep the stores in the condition of first class warehouses, and that he was not bound to improve the floors by caulking them, but was only bound to keep them in as good condition as when constructed. The case went to the jury upon this theory, and they, doubtless, found that the defendant had failed to keep the buildings up to their original condition.
Judgment should be affirmed with costs.
Judgment affirmed.