113 N.Y.S. 1078 | N.Y. App. Term. | 1909
The action was brought to recover $60 for each of the months of February and March, 1908, the rent reserved in a written lease of the parlor flat of the premises 423 East Sixth street in the city of Hew York, borough of Manhattan, which lease was dated the 27th day cf June, 1905, and made by Samuel Alter,, a predecessor in interest of the plaintiff, to the defendant, for a term of two years and eight months, beginning on the 1st day of September, 1905, and ending op the 1st day of May, 1908,
On this appeal from the judgment it is urged for the appellant that no eviction could result from the plaintiff’s failure to repair the roof of the extension since the defendant himself was bound to make the repairs, but the lease provided that the lessee “ shall at his own cost and expense make and do all repairs to the walls, ceilings, paper, glass and glass globes, plumbing work, ranges, pipes and fixtures belonging thereto,” and this must be held exclusive of any other duty of the defendant to make repairs. Expressio unius persones, vel rei, est exclusio alterius. Whart. Leg. Max. XXXVI,, p. 87, Flanagan v. Fox, 6 Misc. Rep. 132; affd., on opinion below, 144 N. Y. 706. Were, therefore, this question of the proper interpretation of the lease the only one upon which the judgment is challenged we would be content to affirm the latter since we cannot reasonably . differ from the finding of the court below that the defendant was justified in quitting the possession of the premises for the plaintiff’s persistent neglect to make the needful repairs. Error of gravity, however, calls for the reversal of the judgment.
Again, by the terms of the lease the February rent became due and payable before the defendant’s eviction. The plaintiff was, therefore, entitled to the whole rent for the month. Hurliman v. Seckendorf, 10 Misc. Rep. 550; Stein v. Rice, 23 id. 348; Fuller v. Man. Const. Co., 44 id. 219; Gugel v. Isaac, 21 App, Div. 504. True, the defendant might have been entitled to deduct from the rent reserved the reasonable value of the use of the premises for the remainder of the term, having been deprived of such use because of his eviction. But a recovery of the value of such use was the subject-matter of a counterclaim, and no such counterclaim was pleaded or attempted on the trial. It was error, therefore, to credit the plaintiff with less than the entire amount of the February rent.
For the reasons stated the plaintiff was entitled to judgment against the defendant in the sum of sixty dollars, the February rent, and a judgment for the defendant is unsupported by the record.
Gildersleeve and Guy, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.