p. 170an order, which affirmed an order of the general term of the city-court of New York, which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.
The lease contained the following provision: “ It is further agreed by and between the parties hereto that, if without fault, neglect or improper conduct of the party of the second part, his agents, servants or tenants, the premises hereby leased, or the building, shall be damaged by fire, the elements, or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs, but, if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time.”
Plaintiff sought to recover rent claimed to have accrued after the repairs were completed. The parties stipulated that the fire was not caused by the fault of either.
N. B. Sanborn, for app’lt; David Leveniritt, for resp’t.
Nothing would need to be added to the very satisfactory opinion of the general term in this case were it not for the elaborate criticism to which it has been subjected in the argument of the appellant. The question was whether the emergency contemplated by the act of 1860 (chap. 845), which is an injury by fire making the premises untenantable, was covered and provided for by the terms of the lease between the parties, and for that reason taken out of the scope and operation of the statute. The lease does provide expressly for two contingencies. One of them is such a destruction of the building as requires it to be rebuilt, in which event all rent ceases and the lease terminates. The other is an injury by fire which admits of a partial occupancjr, in which-event the accruing rent is to be measured by the proportion •of available occupancy. But what occurred was something different from either described contingency. The fire did not compel a re-building on the one hand, nor did it leave a partial occupancy which would carry some part of the rent with it, but the premises demised became wholly untenantable. As .Judge Pryor tersely states it: “A stipulation for a proportional payment for a partial occupancy is clearly no provision for an event which prevents any and all occupancy.” To that proposition the appellant objects, and insists that a fair construction of the lease provides for a suspension of the rent while the premises are untenantable, and founds his argument upon an inference derived from the use of the word “only” in the sentence which reads “shall continue to pay rent only for such portion of th.e leased premises as he can reasonably occupy during the time required to make the necessary repairs.” His argument is that if no proportion of the 'premises is tenantable then none of the rent is payable during the period
p. 171of repairs, but revives when that period ends; that is to say, out of a provision which contemplates no removal but only an inconvenience, a stipulation is evolved which requires a removal during the period of repairs, and then a removal back after they are finished. If so onerous a burden had been in terms proposed it is quite probable that the lease would have been refused. Any removal is a serious injury ,to the business man, and to double it is an evil he would naturally avoid. The statute on the one hand and the re-building clause in this lease both contemplate that where the tenant by reason of fire, is obliged to remove from the premises because they have become wholly untenantable he shall not be obliged to return at some unknown and indeterminate period measured by the landlord’s completion of his repairs, and it would be a very unjust, and, I think, unreasonable construction, that a stipulation for lessening the rent where no removal was necessary should inferentially be extended to one in which a removal was inevitable.
I think, therefore, that the case was correctly decided, and the judgment should be affirmed, with costs.
All concur. Judgment affirmed.