#### Robert Gerson, Louis E. Jacobson and Samuel Jacobson, Appellants, *v.*Max Blanck and Isaac Harris, Respondents.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

Landlord and tenant — lease, provisions of — subject to police power — premises rendered untenantable by fire — action for rent.

A lease is subject to the due exercise of the police power of the state so far as the public safety may require.

Where a lease provides: “ If the premises hereby leased shall be injured by fire or otherwise, but not rendered untenantable, the same shall be repaired with all proper speed at the expense of the lessor; but, if the damage shall be so extensive *as to render the premises untenantable,*the rent shall be proportionately paid up to the time of such damage, and shall from thenceforth cease until such time as same shall be put in good repair,” and in an action for rent it appears that the premises were rendered untenantable by fire in March, and the evidence shows that a new stairway, required by law to make the premises such that defendants could have lawfully continued their business therein, was not completed until the following September, defendants cannot be held for the June and July rent.

Where the evidence conclusively established that plaintiffs’ contractor proceeded diligently with the work of reconstruction in changing doors to open outwardly, as required by law, so far as he was permitted to do by 'the public authorities and by defendants, and that an alleged deprivation of space was not intentional on plaintiffs’ part, a finding of the jury that there was unreasonable delay in making repairs and intentional deprivation of usable space in so changing the doors- was against the weight of evidence.

Where the evidence did not present the issue as to whether there was an unreasonable delay and failure to restore the premises to their original condition, or whether there was an intentional deprivation of usable space in changing doors to open outwardly, as required by law, plaintiffs by consenting to submit such issues to the jury did not waive their right to appeal from a judgment in defendants’ favor, on the ground that the verdict should be set aside on any of the grounds stated in section 999 of the Code of Civil Procedure.

A judgment in defendants’ favor modified so as to state a dismissal of the complaint on the merits, but without prejudice to plaintiffs’ right to sue for rent becoming due after the premises had been put in good repair.

*25• Appeal by the plaintiffs from a judgment of the City Court of the city of New York, rendered in favor of the defendants and from an order denying a motion for a new trial.

Norwood & Harden (Carlisle Norwood, of counsel), for appellants.

Max D. Steuer (Henry W. Bnger, of counsel), for respondents.

Guy, J.

The plaintiffs appeal from a judgment in favor of the defendants in an action brought to recover rent for the months of June and July, 1911, of loft premises on the comer of Washington place and Green street in this city, which were rendered untenantable by fire on March 25, 1911.

On June 1, 1911, the plaintiffs offered to allow the defendants to reoccupy the demised premises. The evidence shows that a new stairway, which was required by law in order to make the premises such that the defendants could have lawfully continued their business on the premises, was not completed until September, 1911. Hntil that date the premises did not become tenantable and the defendants were not obliged to occupy them.

The lease between the parties provided as follows: “ If the premises hereby leased shall be injured by fire or otherwise, but not rendered untenantable, the same shall be repaired with all proper speed at the expense of the lessor; but, if the damage shall be so extensive *as to render the premises*untenantable, the rent shall be proportionately paid up to the time of such damage, and shall from thenceforth cease until such time as same shall be put in good repair.”

In Friedlander v. Citron, 140 App. Div. 489-491, Mr. Justice Miller writing the opinion, the court say: “ In such case the statute would apply if the lease had not expressly provided that the *‘*rent * * * shall from thenceforth cease until such time as the same shall be put in good repair,’ which, of course, means that the rent should cease only *26until that time. Having provided by contract for the contingency that happened, the contract must govern.” Hnder this rule, there was but a single issue to be determined in the case, and that was, whether the premises had been put in good repair in June or July, 1911. This is the issue which should have been submitted to the jury, if, indeed, it was proper to submit any issue to the jury in this case. Instead of submitting this simple issue to the jury, the court below, with the consent of both counsel, submitted the following questions:

*First.*Was there an' unreasonable delay and failure to restore these lofts to their original condition?

*Second.*Was there an intentional deprivation of usable space in changing the doors to open outwardly as required by the Labor Law of the state ?

As I read the evidence, it presented neither of these issues. Even if the premises were not ready for reoccupancy until September, 1911, it could not be held, in view of the fact that the premises had remained under the control of the public authorities for at least three weeks after the fire, during which time all persons were forbidden to disturb existing conditions, and in view of the fact that there is evidence that defendants refused to permit the debris to be removed for a similar period, until they had adjusted their insurance loss, that plaintiffs were guilty of unreasonable delay in making necessary repairs to restore the place to its ■former condition so far as the same was permissible under the law.

There is no basis whatever in the evidence for the submission of the second question to the jury. The change of the doors so as to make them open outwardly, instead of inwardly, was required by the Labor Law of the state, and there is not a scintilla of evidence from which the jury would be justified in finding that more space was taken in effecting such change than was necessary in order to comply with the law. The lease must be presumed to have been made by both lessor and lessee with a view to the due exercise of the police power of the state during the term of the lease so far as the public safety might require. Both parties *27tried the case upon the artificial basis indicated in the propositions submitted to the jury, and counsel for the plaintiffs consented that these issues be submitted, thereby conceding that there was sufficient evidence on these issues to call for their submission to the jury. But, by consenting to the submission of these issues to the jury, plaintiffs did not waive their right of appeal on the ground that the finding of the jury should be set aside on any of the grounds stated in section 999 of the Code. See Picard v. Lang, 3 App. Div. 51-54.

I am of the opinion that the finding of the jury that there was unreasonable delay on the part of the plaintiffs in making the repairs, and an intentional deprivation of usable space in changing the doors to open outwardly, was entirely against the weight of evidence. It appears conclusively by the evidence that plaintiffs’ contractor proceeded diligently with the work of reconstruction so far as he was permitted to do so by the public authorities and by the defendants, and that the alleged deprivation of space was not intentional on the part of the plaintiffs but was due to the requirements of the law in that regard. The proof establishes, however, that the premises were not “ in good repair ” in the months of June and July, which we understand to mean tenantable condition, such condition as would permit of their use by the defendants, without violation of law, for the purposes contemplated by the lease,, and plaintiff is not, therefore, entitled to recover rent for those months. So far, therefore, as the judgment has the effect of dismissing the complaint on the merits as to plaintiffs’ claim for rent for those months, it must be affirmed with costs.

We have expressed our views thus at length because of the suggestion contained in the charge of the court below that the judgment rendered would determine as to the future liability of the defendants under the lease. We do not so understand the case. The present judgment, whatever may have been the theory upon which the case was tried by counsel, settles only the question as to whether or not these plaintiffs are entitled to rent for the months of June and July. In order, however, that no misunderstanding may arise in *28the future as to the meaning of this judgment, we think that the judgment appealed from should he modified so as to state that the complaint is dismissed upon the merits as to the rent alleged to he due for the months of June and July, but without prejudice to the right of the plaintiffs to sue for rent which may subsequently become due after the premises have been “ put in good repair.”

Judgment modified so as to read as follows:

Ordered, adjudged and decreed that the defendants Max Blanck and Isaac Harris, copartners under the firm name of Triangle Waist Company, recover and have judgment against the plaintiffs ¡Robert Gerson, Louis E. Jacobson and Samuel Jacobson, in the sum of $10'6.82, dismissing the complaint on the merits as to the rent alleged to be due for the months of June and July, 1911, but without prejudice to the right of the plaintiffs to sue for rent which may subsequently become due after the premises have been put in good repair, and that an execution issue therefor, and, as so modified, the judgment is affirmed with costs.

Seabury and Gerard, JJ., concur.

Judgment modified, and, as so modified, affirmed, with costs.