#### Daniel Buhler, Resp’t, *v.*Michael J. Gibbons, App’lt.

*(City Court of Brooklyn,*

*General Term,*

*Filed January 29, 1889.)*

1. Landlord and tenant—Question of breach in a condition—Relates to WHAT.

The question of breach in the condition of leased premises should relate to the final and actual surrender, and should not be controlled by legal and technical surrenders occurring along the line.

2. Save—When referee’s decision conclusive.

The question as to the repairs made by the plaintifi during the second lease, to meet the requirements of the board of health, was one of fact, and was decided on conflicting testimony; so also whether the work called for by the board of health was, in the nature of repairs, to be paid for by the defendant, or was work in the nature of alterations to be paid for by the plaintiff. *Held,*that the referee’s decision thereon is conclusive.

On or about March 30, 1880, the plaintiff in this action leased to the defendant certain premises in New York city, for the term of five years, from May 1, 1880, and thereafter on said May 1, 1880, a permission in writing was given the defendant to make alterations on the second floor of the building, and he agreed, if the alterations were made, to restore the premises to the condition they were in at the time of the letting, thirty days before the expiration of the lease. Subsequently, in January. 1885, the defendant obtained from plaintiff a lease for a further term of one year, from May 1, 1885, which instrument contained a covenant by the defend*304ant, that he would make all repairs, and keep the premises in the condition required by the health department of New York city. Each lease contained a provision that, at the expiration of the term, the tenant would surrender the premises is as good a condition as they were in at the commencement of the term. According to the findings of fact, in the case, the tenant, while in possession under the first, lease, removed certain partitions on the second floor, but did not restore them at the end of the second lease, and the plaintiff replaced them at an expense of $140.74. The referee also finds that the defendant did not surrender the premises at the end of the second lease, in as good a condition as the same were on May 1, 1880, and that plaintiff was. thereby damaged in the sum of $124.28. It is also found that during the second term, the plaintiff was compelled to make repairs to meet the requirements of the board of health, and paid out for that purpose $142.90. For the three items above set forth, and the sum of twenty dollars additional, as to which no point is made by the appellant, the referee rendered judgment in favor ef the plaintiff, and from such judgment the defendant took this appeal.

*John Maguire,*for app’lt; *George M. Baker,*for resp’t.

Clement, Ch. J.

It is claimed by the counsel for the appellant, that the items sued for on the first lease should have been disallowed, for the reason that the acceptance of the second lease should be deemed a surrender of the prior one, and operated as a waiver of the breach of covenant. This claim is adversely decided in the case of *McGregor*v. *Board of Education,*107 N. Y., 511; Judge Finch says (page 517) 12 N. Y. State Rep., 292: *“We*are of opinion that the-question of breach in the condition of the premises, should relate to the final and actual surrender, and not be controlled by the legal and technical surrenders occurring along the line.”

The question as to the repairs made by the landlord during-the second lease to meet the requirements of the board of health, was one of fact, and was decided, on conflicting-testimony, in favor of plaintiff. Whether the work called for by the board of health was in the nature of repairs, and to be paid for by the tenant, or whether the work was in the nature of alterations, and to be paid for by the landlord, were also questions of fact, and the decision of the referee thereon is conclusive.

We do not think that the phrase in the lease “ requirements of the health department,” is ambiguous on the facts of this case. The tenant was 4o make repairs, and to keep the premises in such condition as would fully conform to the requirements of the health department. He was duly notified, and failed to make the necessary repairs, and the landlord was compelled to do the same in order to avoid prosecution for the penalty.

*305The counsel for the appellant has filed no exceptions to th report of the referee, but we have considered the case as if the proper exceptions had been taken, and find no er 'or.

Judgment affirmed, with costs.

Van Wyck, J., concurs.