#### George Nimmo, Respondent, *v.*May A. Harway, Appellant.

(Supreme Court, Appellate Term,

March, 1898.)

1.. Lease —When, the 'fire clause alone measures the liability of the parties.— Inapplicability of Laws of 1860, chapter 345.

In an action brought to recover a deposit, made by. a third person to secure the performance of the conditions of a lease, it appeared that the fire clause of the lease provided “ The tenant shall, in .case of fire, give immediate notice thereof to the landlord, who shall there-. upon cause the damage t¡o be repaired forthwith; hut if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease, and the accrued rent he paid up to the time of the fire.” Held, that the covenant measured the liability of the parties to the lease, and that chapter 345 of the Laws of 18601 did not apply.

*2.*Same — Abandonment."

It further appeared that the fire, which was not the fault of the tenant, rendered the premises untenantable and that, when nine days later the landlord had made no attempt to repair, the tenant abandoned.

Held, that he was justified in abandoning and that the plaintiff was entitled to the return of - Ms deposit.

Appeal from a judgment of..the Binth Judicial District Court. The action was brought by respondent to recover the sum of $250, which Was deposited by respondent with appellant as security for the faithful performance of the terms ¡of a lease of premises Ho. 2191 (Eighth avenue, in the city of Hew York..

Geo. F. Alexander, for respondent.

G. O. & L. S. Hulse, for appellant.

Gildersleeve, J.

The plaintiff claims to recover on the ground that the -lease was canceled by reason of the fact that the premises were so injured by fire, on September 20, 1896, as to become untenantable and unfitted to carry on the business for which they were rented, and that the defendant failed to cause the 'damage thereto to he forthwith repaired. This question is presented: Was the emergency, contemplated by the statute of 1860, chapter 315, *127which is an injury by fire making the premises untenantable, covered and provided (for by the terms of the lease, and thereby taken out of the scope and operation of the statute? The act in question provides as follows, viz.: “ The lessee of any building, which shall be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be hable or bound to pay ¡rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant.” The fire clause in the lease in question is as follows: “ The tenant shall, in case of fire, give immediate notice thereof to the landlord, who shall thereupon cause the damage’to be repaired forthwith; but if the premises be so> damaged that the landlord shall decide to rebuild, the term shall cease, and the accrued rent be paid up to the time of the fire.”

It was the conclusion of the trial justice that the covenant under consideration did not avoid the operation of the statute, ¡and did not.create a case where the parties have “ otherwise expressly provided by written .agreement or covenant.”

In Butler v. Kidder, 87 N. Y. 99, the Court of Appeals hold that it is not essential, in order to exclude the lessee from the benefit of the statute, that there should be a covenant, in .express terms, obligating him to pay rent, although the building becomes untenantable; but it is sufficient if the intention to take away such benefit is clearly shown on the face of the lease, as where it appears that the parties, having in mind the contingency mentioned in the statute, inserted provisions or covenants inconsistent with the right of surrender.

We think it must be,said that the parties to this lease provided, by express covenant, for the contingency of fire, and that this, therefore, furnishes the measure of the tenant’s liability, and that the statute has no application. See Tocci v. Powell, 75 N. Y. St. Repr. 905; Butler v. Kidder, *supra.*It. is necessary, therefore, to revert to the covenant under consideration and to the incidents that happened, as established by the testimony, in order ta determine the rights of the parties.

The fact is fully established that the premises were rendered untenantable .by reason of 'the damage occasioned by the fire, and it further appears that the fire was not the result of any negligence or want ¡of ¡care on the part of the tenant. The covenant in the lease imposed upon the landlord the duty of causing the damage to be repaired forthwith. “Forthwith” means within a reasonable *128time, or without unnecessary 'delay. After the landlord received nqtice of the -fire, it was his duty to proceed with proper diligence to do whatever was necessary to remedy the injury unless the premises were -so damaged -that he decided to rebuild^ in which case he should have notified the tenant. If the tenant waited a reasonable time for -him to do the work/ and it was not done, the tenant might remove from the premises if - he had been and was deprived of the beneficial use. and enjoyment tof them. O’Gorman v. Harby, 75 N. Y. St. Repr. 911. Any other construction would compel the tenant to resume possession at an unknown and undeterminable period, measured only by the pleasure of fhe landlord, which was evidently not the intention of the 'contracting) parties. Bacon v. Albany Perforated W. P. Co., 22 Misc. Rep. 592. As the premises had been rendered untenantable by the fire, it was certainly a reasonable requirement, especially in view of the express language of the covenant, that they should be made tenant-able without unreasonable delay. Some diligence on the part of the landlord was contemplated.

It .appears from the testimony that the fire occurred -oh the morning 'of the 20th of September, and that the same was brought to the knowledge of the landlord almost immediately; but that no repairs whatever had been done up to the 29th of September, when the tenant abandoned the premises. The witness Diebold, a baker, who was the actual tenant and occupant 'of the premises, testifies: “ Q. -How soon after the fife did you see Mr. Harway (the agent and representative of the landlord) ? A. On Sunday the fire was> and on Monday I saw Mr. Harway; I had a conversation with him in .regard to putting the place in order; not the first time, but the second time ,he came around; Wednesday or Thursday; I ¿asked him if he had got through with-his insurance; he said no; I asked him if to was ¡going to have the place fixed up- again, so that I could start Up again; he said,- “I don’t know,”' and turned around and walked away; and I had no talk with him after- that. Q. And he didn’t come to see you any more? : A. Ho, sir. Q. This Monday that you speak ¡of, where was he or you?' A. In front :of -the house, and the second time too in front of the house. Q. Was the place in such a condition that you ■ could not carry on your business? A. Yes, sir; I couldn’t carry on business. Q. How long after the fire did you remain there waiting for Mrs. Harway to put the place in proper shape for you to carry on business? A. From September 2.0th to September 29th; then *129I moved out; I couldn’t do any business there; that is the reason I moved out.” Harway, the agent of the landlord, testified that he first 'heard of the fire on the afternoon of the 20th of September, the day of the fire. With regard to his conversation with the ten-, ant, he testifies, “ I said I would fix it up as soon as I got the insurance settled.”

It must be said that the tenant waited a .reasonable time for the landlord' to commence the work of repair, in accordance with the provisions of the lease; that the landlord took no steps to repair the untenantable premises and was in default in not performing the condition precedent with the diligence and promptness required; that the tenant was deprived of the beneficial use and enjoyment of the demised premises, and was justified in moving out. It appears from the record that the landlord never demanded any rent after the fire occurred. Had the landlord brought an action for the rent, !we think the tenant could have defended as upon an eviction. See Myers v. Burns, 35 N. Y. 269; Sparks v. Bassett, 49 N. Y. Supr. Ct. 270; 2 Taylor on Land. & Ten. (8th ed.), p. 381; Tallman v. Murphy, 120 N. Y. 346; O’Gorman v. Harby, 75 N. Y. St. Repr. 911.

While it is true that, after the breach of the covenant to repair, on the part of the landlord, the tenant had the right to perform the work himself, and recover the cost in an action for that purpose, or upon a counterclaim in an action for the rent, he, nevertheless, was not bound to follow that remedy. He could choose between that remedy and the right to move out, as either of those courses were open to him under' the law. See Tallman v. Murphy, *supra;*O’Gorman v. Harby, *supra;*Myers v. Burns, *supra;*Sparks v. Bassett, *supra.*He elected the latter. Hnder the circumstances, we are of opinion that the tenant was justified in regarding the lease as canceled, and his liability thereunder as terminated; and that the plaintiff is entitled to recover back from the defendant the sum of $250, which was deposited by him as security.

Bor the reasons above stated, the judgment appealed from should be affirmed, with coste to the respondent.

Beekmajst, P. J., and Giegkerich, J., concur.

Judgment affirmed, with costs, to respondent.