#### William R. Wisser, Respondent, *v.*Robert Cohn, Appellant.

(Supreme Court, Appellate Term, First Department,

March, 1913.)

Lease — landlord and tenant — premises rendered untenantable by fire — action by tenant to recover deposit under terms of lease.

Trial — motion to dismiss complaint — motion for direction of verdict — questions for jury.

Where, in case leased premises were not totally destroyed by fire, the landlord was bound to repair forthwith, and the premises while the tenant is in possession are rendered untenantable by fire, necessitating extensive repairs which were completed within four months, the question as to whether the repairs were made within a reasonable time should have been submitted to the jury in an action by the tenant to recover the deposit made under the terms of the lease. . '

Where, after the court at the close of the trial had denied a motion to dismiss the complaint, plaintiff moved for the direction of a verdict, and defendant requested to go to the jury on the question of reasonable time in making the repairs, the direction of a verdict for plaintiff is reversible error, as is also the denial of defendants request to go to the jury.

. Ajpeeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, sixth district, entered upon the direction of a verdict in favor of the plaintiff after a trial before the court and a jury.

*626Sol A. Cohn, for appellant.

Burnstine & Geist (Joseph G. Cohen, of counsel), for respondent.

Gerard, J.

The action was brought to recover the sum of $300 deposited by;plaintiff with the defendant'under the terms of a written lease. By said lease defendant, as landlord, let to plaintiff, as tenant, the upper floors of a building on West Broadway for a term of three years. On the 29th of April, 1912-, while the plaintiff was in possession and occupation, a fire occurred therein, which rendered the premises untenantable. The lease contained a clause which required the landlord, in case of fire where there was not a total destruction, to repair forthwith.

At the trial it was conceded that the premises were rendered untenantable and that extensive repairs had to be made. All the front was well out from the top floor, the ceilings of the various floors were all burned, all the plaster was down, all the doors to the various lofts were burned out and all the windows.

The defendant testified that immediately after the fire he visited the premises, noted the danger; and on the second of May, four days after the fire, was on the premises with five different contractors and asked for estimates. That after these estimates were in, he went to see all the contractors to go over their estimates on the eleventh and twelfth days of May; went to see Brooks, the contractor to whom the job was ultimately given, on the thirteenth, and on the fifteenth the contract was signed. The contract price for the repairs was $5,300. Brooks, the contractor, testified that he made, an attempt to start before the twenty-first of May, and there was a claim that he- was interfered with by acts of the plaintiff. He worked continuously and the repairs were finished on July twenty-sixth.

At the close of the trial the defendant moved to dismiss the complaint, which motion was denied. The plaintiff then asked for- the direction of a verdict, and the defendant asked to go to the jury upon the question of reasonableness of-*627time in making repairs; whereupon the court granted the plaintiff’s motion to direct a verdict for the plaintiff and denied defendant’s request to go to the jury.

I think that the question of reasonable time should have been submitted to the jury. “ Forthwith and as speedily as possible ” had both been construed to mean within a reasonable time.' See Nimmo v. Harway, 23 Misc Rep. 126; Bacon v. Albany Perforated W. P. Co., 22 id. 592. And in Quinn v. Cohen, 69 Misc. Rep. 610, it was held by this court that it is well 'established that when the question of reasonableness of time depends upon inferences to be drawn from peculiar, .numerous or complicated circumstances such as are involved in this action, it is a question of fact for the jury.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Bijur, JJ., concur.

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