#### Robert Clenighan, Appellant, *against*William C. McFarland, Respondent.

(Decided December 1st, 1890.)

An agreement by a lessor, before or at the time of making a written lease, and as a condition on which the lessee hired the premises, that they should be put' in thorough repair before the commencement of the term, being collateral to the lease, may be proved and enforced although not reduced to writing nor incorporated in the lease. ,

The amount paid by the lessee for rooms and meals at a hotel for the time that the premises were untenantable,while the repairs were in progress during the term, is not recoverable by him as damages for breach of such agreement; the measure of his damages is the value of the use of the premises during the time they were so rendered untenantable.

Appeal from a judgment of the District Court in the City of New York for the Eleventh Judicial District.

The facts are stated in the opinion.

*Matthew*Daly, for appellant.

*Grratz Nathan,*for respondent.

J. F Daly, Ch. J.

The action was brought to recover the sum of $208.33 for one month’s rent of the house and premises 3 East 27th Street under a lease for a term of two years commencing Majr 1st, 1890, made by Mrs. Pfaff to the defendant, at an annual rental of $2,500, payable monthly in advance. This action is for the first month’s rent, and the cause of action was assigned to the plaintiff June 1st, 1890. The doféndan t interposed a counterclaim for damages for the breach of an agreement made by the landlord with him before or at the time of taking the lease, by which the lessor agreed as a condition upon which the defendant hired the premises that they should be put in thorough repair before the commencement of the .term. The justice found that such an agreement had been entered into by the landlord, that the premises were not *403put in thorough repair by the time agreed upon, and that the damages of the defendant by reason of such breach equalled or exceeded the rent sued for, andgave judgment accordingly for the defendant.

The appellant urges as a ground of reversal that the evidence. of a verbal agreement to put the premises in repair was not admissible, it being an attempt to modify or vary the written lease. In this he is mistaken. The agreement was collateral to the written lease and may be proved and enforced although not reduced to writing nor incorporated, in the lease *(Chapman*v. Dobson, 78 N. Y. 75). It is oniy such mattersas " concern • a subject embraced in and covered by the terms of the lease that must be incorporated in it, and that are deemed to be waived if not so incorporated, although they may have been the subject of prior negotiation and agreement between the contracting parties. Had this been an agreement on the part of the lessor to make repairs, or to keep the premises in repair during the term, it would have fallen within this rule, but an independent agreement to put the premises in repair before the term, and. made as a condition of or consideration for the taking of the lease, stands upon a different footing. Similar agreements have been held to be collateral and are cited by the court in the case referred to. In *Mann*v. *Nunn*(43 L. J. C. P. 241), where a lessor promised that, if the proposed lessee would. take a lease of a house, he would put the house in a state fijb for occupation, the promise was held to be collateral to the written lease and provable by parol evidence for the purpose of'recovering damages for a breach of it.

There-was substantially no dispute as to the alleged agreement tti put the house in repair, although there was a conflict 'of evidence as to the amount of repairs agreed to be done and •.as to whether the delay in making the repairs, stipulated for under the agreement, was delayed by the act of the tenant in requesting additional work to be done. We are to assume .from the judgment in the case that the justice found upon all these issues in the defendant’s favor, and his conclusion "would not be disturbed if there were no error committed in the trial of the other issues.

*404It seems, however, that the defendant mistook the rule as to the damages he would be permitted to prove under his counterclaim. He was allowed, against the objection of the plaintiff, to show what he paid for rooms and meals at the St. James Hotel during the period that the demised premises remained untenantable while the repairs were in progress. This was improper. The measure of his damage was the value of the use of the premises during the time they were rendered untenantable by reason of the defendant’s failure to complete the repairs *(Myers*v. Burns, 35 N. Y. 269; *Hexter*v. Knox, 63 N. Y. 561).

The defendant did prove the rental value of certain rooms on the upper floors amounting to $150. From the judgment being in his favor we must assume that the justice allowed for the other items of damage improperly admitted, and for this error the judgment will have to be reversed and' a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide event.