#### Joseph Quinn, Plaintiff-Appellant, *v.*Abraham Cohen and William Trayna, Doing Business Under the Firm Name of Trayna & Cohen, Defendants-Respondents.

(Supreme Court, Appellate Term,

December, 1910.)

Landlord and tenant — Rent and advances — Actions — Questions for jury.

Questions of law and fact — Reasonable diligence.

Where a lease -provides that in case of damage to the premises by fire"the landlord should repair “as speedily as possible,” the question whether the landlord has made repairs within a reasonable time after a fire so as to hold the tenant for rent is a question of fact; and, in an action for.rent alleged to have accrued after the premises had been repaired and were ready for occupancy after a fire, it is error to. dismiss the complaint upon the ground that as matter of law a delay of fifteen or eighteen days in making the repairs was an unreasonable time.

Appeal by the plaintiff from a judgment of the City Court of the city of Dew York.

Edward W. Murphy (Abraham P. Wilkes, of counsel), for appellant.

Samson Friedlander (George Edwin Joseph and Henry S. J. Flynn, of counsel), for respondents.

Guy, J.

Plaintiff appeals herein from a judgment dismiss: ng 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 Dovember *6111, 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 ease 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 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 first of February, the third day after the fire, the premises were inspected by the contractor with whom the contract for repairs was ultimately made; that it usually takes ten 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, determin*612ing the character and extent of the repairs and having contracts and specifications drawn; that work was actually begun on February fifteenth, seventeen days after the fire, and it was pushed vigorously. At the close of plaintiff’3 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, it is a question of fact for the jury. See McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40; Greacen v. Poehlman, 191 id. 493; O’Brien v. Phoenix Ins. Co., 16 id. 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.

Platzek and Gavegan, JJ., concur.

Judgment reversed.