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Quinn v. Cohen

125 N.Y.S. 1025 Court N.Y. App. Term Decision date 1910-12-08 English

Delivered by GUY, J.

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QUINN v. COHEN et aL
(Supreme Court, Appellate Term.
December 8, 1910.)

Headnote

Landlord and Tenant (§ 233[1] )—Premises—Repairs—Injury by Fire—Reasonable Time—Jury Question.
Whether or not a landlord has repaired premises injured by fire within a reasonable time so as to hold tenants under covenant to repair in the lease held, under the evidence, to be a question for the jury.
[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 233.*]
Appeal from City Court of New York, Special Term.
Action by Joseph Quinn against Abraham Cohen and William Trayna. From a judgment for defendants, plaintiff appeals. Reversed and remanded.
Argued before GUY, PRATZEK, and GAVEGAN, JJ.
Edward W. Murphy (Abraham' P. Wilkes, of counsel), for appéllant.
Samson Friedlander (George Edwin Joseph and Henry S. J. Flynn, of counsel), for respondents.

Plaintiff appeals herein from a judgment dismissing the complaint. The action was brought on a, written lease entered into between plaintiff and defendants for a period of one year and three months, commencing November 1, 1907, which lease provided:

“If the demised premises shall be damaged by fire they shall be repaired as speedily as possible by the said lessor. If the damage shall be so extensive as to render said premises or building in which they are untenantable, the rent shall be proportioned up to the time of such damage and shall thenceforth cease until such time as the same shall be put in good repair; but in case of total destruction by fire or otherwise the rent shall be apportioned up to the time of such destruction, and this lease shall thenceforth cease and determine.”

The complaint alleges that the defendants went into possession on November 1, 1907, and continued in possession until January 28, 1908, when, without fault on the part of the plaintiff, a fire occurred which rendered the premises temporarily untenantable; that the plaintiff then proceeded with all due diligence to repair the damage, and had the same ready for occupancy on or about the 23d of March, 1908 ; that defendants failed to pay rent which accrued on and after March 23, 1908, up to the time of the expiration of the lease, and plaintiff demands same less the amount received by plaintiff through subletting of the premises as agent of the defendants. The answer denies the material allegations of the complaint, and sets up as an affirmative defense that on the 28th day of January, 1908, defendants surrendered the premises to the plaintiff. The. plaintiff testified as to the circumstances of the fire, and that he immediately thereafter inspected the premises to see what was necessary to be done; that within two days after the fire he requested bids from various contractors; that on the 1st of February, the third day after the fire, the premises were in

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spected by the contractor with whom the contract for repairs was ultimately made; that it usually takes 10 days from the time bids are invited before the work can be actually commenced, the time being necessarily consumed in making estimates and getting the equipment ready; that in this instance it took nearly a week to obtain subcontractors to get ready for the work of repair, which was very extensive, involving an outlay of some $3,900, and that, in addition, plaintiff consumed several days in considering the estimates submitted, determining the character and extent of the repairs and having contracts and specifications drawn; that work was actually begun on February 15th, 17 days after the fire, and was pushed vigorously. At the close of plaintiff’s case the court dismissed the complaint, holding, as matter of law, that “to delay making repairs under circumstances similar to these for fifteen or eighteen days is an unreasonable time.” It is well established that when the question of reasonableness of time depends upon an inference from peculiar, numerous, or complicated circumstances, such as are involved in this case, that it is a question of fact for the jury. See McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40 , 81 N. E. 549 , 13 L. R. A. (N. S.) 465 ; Graecen v. Poehlman, 191 N. Y. 493 , 84 N. E. 390 ; O’Brien v. Phœnix Ins. Co., 76 N. Y. 459 .

The dismissal of the complaint was therefore erroneous, and the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.

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