#### Bushwick Realty Company, Appellant, *v.*Sanitary Fire Proofing and Contracting Company, Respondent.

Second Department,

December 30, 1908.

Landlord and tenant — tenant’s covenant to repair — when absolute.

Where a lease provides that during the term and all renewals “the lessee will make all repairs and will surrender the premises in good order at the end of the term ” the covenant to repair is absolute and the tenant is liable to the landlord for the expense of repairing the walls and roof as required by the municipal building department, in order to insure the safety of the building, no matter what the cause of the defect.

Appeal by the plaintiff, the Bush wick Realty Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn.

*Louis D. Speir [Newell Martin*and *Eli J. Blair*with him on the brief], for the appellant.

*B. C. McKenna,*for the respondent.

Hooker, J.:

Plaintiff is aggrieved at the judgment of six cents in its favor, and appeals. The action is landlord against tenant to recover the reasonable value of repairs which, the plaintiff claims, defendant was bound under the lease to make and did not. After specifying certain minor repairs the landlord agreed to make when the tenant went in, the lease provided: “During the term of the lease and all renewals, the lessee will make all repairs and will surrender the *534premises in good order at the end of the term.” This is something more than a mere agreement to make ordinary or general repairs and to surrender the premises in as good condition as they were at the commencement of the term, ordinary wear and tear excepted. The distinction has been recognized. *Lockrow*v. *Horgan*(58 N. *Y.*635) was an action against the tenant to recover for repairs; by the lease the tenant was to make *“*all necessary repairs; ” the defendant denied liis liability because the settling of the rear wall, which rendered the premises untenantable, was owing to original defective construction of the foundation, and his agreement to repair did not go to this. It was held: *“*As the covenant was absolute to make all necessary repairs and keep the premises in tenant-able order, and no fraud on the part of the landlord having been shown, defendant was bound to make the repairs irrespective of the cause of the defect, and defendant having abandoned the premises without making the repairs, the landlord had a right to make them and recover the expenses *(Ward*v. Kelsey, 38 N. Y. 80).” (See, too, *Appleton*v. *Marx,*117 App. Div. 206; affd., 191 N. Y. 81; *Green*v. *Eden,*2 T. *&*C. 582; *Lehmaier*v. *Jones, 100*App. Div. 495.)

During the term the building department determined that the building in question was unsafe, and directed its repair in what may be conceded were radical particulars, which involved making plumb the brick walls and supporting anew the roof. The plaintiff proved by the witness Kraemer, who was qualified, the actual necessities of the case, independent of the edict of the department; he swore that *“*the rebuilding of the walls ordered by the Building Department ” was “ absolutely necessary to be done,” and all the circumstances point to equal necessity as to the roof. By reason of the covenant the defendant was bound to make the repairs, and in default is liable to the plaintiff for their reasonable cost. *(Lockrow*v. *Horgan, supra.)*Such cost was adequately established by evidence which was entitled to credit and which the trial justice should not have disregarded, and the judgment must be reversed and a new trial ordered, costs to abide the event.

Woodward, Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered costs to abide the event.