May v. Gillis — 53 A.D. 393

Majority

p. 393

Nathan May and Others, Composing the Firm of May, Levy & May, Respondents, v. Constant Gillis, Appellant.

Headnote

Surrender of demised, premises as untenantable— when it cannot be made by a tenant who has agreed to make “all inside and outside repairs.”

The provisions of section 197 of the Real Property Law (Laws of 1896, chap. 547, substantially re-enacting chap. 345, Laws of 1860), authorizing a tenant to surrender the demised property when it ceases to be tenantable, are inapplicable to the case of a tenant who has agreed to make “all inside and outside repairs ” where the roof of a bowling alley, attached to and a part of the demised premises, collapses in consequence of a snowfall.

Appeal by the defendant, Constant Gillis, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 12th day of June, 1899, upon the verdict of a jury rendered by direction of the court, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 12th day of June, 1899, denying the defendant’s motion for a new trial.

E. D. Benedict [John F. Brush with him on the brief], for the appellant.

A. M. Fragner, for the respondents.

The principal question in this case is whether the defendant, who was a tenant of the plaintiffs, is relieved from his liability for rent under the lease between the parties, by virtue of the operation of section 197 of the Beal Property Law, which is substantially a re-enactment of chapter 345 of the Laws of 1860. (Laws of 1896, chap. 547.)

That section reads as follows : “ Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause, as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender.”

The leased premises consisted of a main building, having a, width of forty-six feet fronting on Broadway, near Granite street, in the present borough of Brooklyn. The lease was for three years, beginning on May 1, 1897. In November, 1898, a part of the building, which is described as having formerly been a bowling alley and as being a kind of shed thirteen feet wide, collapsed in consequence of the weight of the snowfall upon the roof. After this accident the defendant refused to pay any more rent, on the ground that in consequence thereof the premises had become untenantable and unfit for occupancy, and he was, therefore, entitled to the protection of the statute cited.

It is doubtful whether, in any Ariew of the case, the damage was extensive enough to interfere with the occupation of the leased premises as a whole, but it is unnecessary to pass upon this question. The lease* expressly bound the lessee to maintain the premises in repair. The language of the instrument is: “ All inside and outside repairs to be made by said party of the second part.” This agreement is plainly broad enough to include the obligation to make good the disastrous effects of the snowfall under which the shed gave way. “ A general covenant to repair is binding upon the tenant under all circumstances. If the injury proceeds from the act of a stranger, from storms, floods, lightning, accidental fire; or public

p. 395

enemies, he is as much bound to repair as if it came from his own voluntary act. Such has been the settled rule since the time of Edward III. * "x" * If the tenant desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from the operation of his covenant.” (Polack v. Pioche, 35 Cal. 416 , 422.)

In the present case no such exception can be found, audit is clear that the effect of the covenant on the part of the lessee was to render the section of the Real Property Law, which authorizes a surrender when the leased property ceases to be tenantable, unavailable in his behalf.

It follows that the tenant was rightly held liable for the rent.

All concurred.

Judgment affirmed, with costs.

Cases cited

Polack v. Pioche 35 Cal. 416 Cal. at 422 p. 395