#### Betsey Kling, plaintiff and appellant *vs.*William Dress *et al.*defendants and respondents.

1. In an action to recover demised premises for forfeiture of the term, by reason of non-performance by the lessee of a covenant contained in the lease therbof, “ to keep tibp premises in good repair, and do all necessary repairs upon the building, (upon such premises,) and the gas and Croton water pipes,” under a clause of'forfeiture for non-performance of covenants contained in such lease, if it be established that the building was allowed to be out of repair at any time, the' plaintiff is entitled to recover, from whatever cause, such defect may have arisen, notwithstanding such lease contains an additional covenant by the lessee to “ quit and surrender the premises in as good state and condition as reasonable use and wear thereof would permit, damages by the elements excepted.” Bakbour, J. dissented.

•2. There is no rule of construction which would graft the exception contained in the last covenant upon the first, as they are entirely different in character, and entered into for different purposes. That to repair is accompanied by a clause creating a forfeiture in case of its non-performance. Under that to surrender, no better condition of the premises is required than that in which it was at the beginning of the lease, while under that to repair, improvements are included. The covenant to surrender in good repair is only the same obligation as that implied in every tenancy; it does not run with the land, which the other does, and it is strictly construed. Without such a covenant no action would lie until the end of the term, even if the buildings were pulled down. Even covenants to repair absolutely and on notice in the same instrument, are to be construed separately. A limitation of a covenant resting only in damages, is not to be construed to limit a condition which defeats an estate, unless by express words or plain implication.

(Before Robeetsor, Ch. J., and Barbour and Morem., JJ.)

Heard April 1, 1867;

decided April —, 1868.

This was an action brought by the plaintiff as assignee of the lessor of certain premises in the city of New York, *522against the lessees thereof, and their assignee or tenants,' to recover possession of them, because the buildings upon them were not kept in repair, according to a covenant and condition contained in the lease.

The lessor, (Gildersleeve,) when owner of the premises, demised them to the defendants William and Ferdinand Dress, for four years from May 1st, 1864, by a lease dated in the previous month of March. - By it such lessees covenanted, that if default should be. made in any of the covenants therein contained, it should be lawful for the lessor to re-enter the demised premises, and remove all persons therefrom. They further covenanted therein and thereby to “ *Iceep such premises in good*repair, and do all *necessary repairs on the buildings,** * at their, own expense, during the term,” which covenant was in writing. They also further covenanted thereby at the expiration of. such term, to “ quit and surrender the premises in as good state and condition as reasonable use and wear thereof” would “permit, *dam-, ages by the elements excepted,”*which covenant was printed.

In July, 1864, such lessor, conveyed the premises to the plaintiff, and in July, 1866, this action was commenced. The issues made in it were referred to a referee to hear and determine.

The referee found, among other facts : That the roof of the front building on such premises was a peaked shingled roof, composed of two parts, sloping from the peak both ways towards the front and rear. The shingles.were laid in three courses, overlapping each other. The upper course of the front division of the roof projected above the upper course of the rear one. From fifteen to twenty parts of shingles of such upper course of the rear roof were wanting, and five or six displaced, and there were wanting on both roofs from thirty to thirty-five entire shingles. Many of the nails fastening the shingles were nearly eaten through with rust. The missing shingles had been loosened by the decay of the roof, the rusting of the nails, and effects of the elements. Two pieces of thin board, like clapboards, had *523been inserted on the fropt roof to supply the places of the absent shingles. Roofs of buildings on the premises were in a state of decay from the effects of wind and weather. The leader to conduct the water from the gutter of the rear building was somewhat honeycombed. An iron pipe, connected with such gutter, (leading water from the building,) was considerably rusted. Perishable outside materials of the building showed, generally, the effect of time and the elements. The buildings were in good repair, *except by reason of damages caused by the elements.*The referee, therefore, found in favor of the defendants, and gave judgment dismissing the complaint; from which the plaintiff appealed.

*0. Bainbridge Smith,*for the plaintiff, appellant.

*S. Sirsch,*for the .defendants, respondents.

Robertson, Ch. J.

The referee in this case has found in his report that the buildings upon the premises in question *“*are in good repair, excepting such damages as have been caused by *the reasonable use and wear thereof, and by the elements.”*But he has omitted otherwise to find directly whether the lessees kept the demised premises “ *in good repair,”*and did “ all necessary repairs upon the buildings thereon,” as required to do by their covenant in such lease, upon the non-performance of which the plaintiff had a right to re-enter. The referee has, however, specified the defects in such buildings whi.ch "have arisen since the lessees went into possession of the demised premises. From these it can be seen that the premises are not in as good a condition as when the lessees so entered into possession, and that they needed repairs to make them so. The plaintiff, therefore, was entitled to recover, unless the defendants were excused from repairing, because such defects were produced by the elements and corrosion of time. No such exception is contained in the covenant to repair, and unless by some implication or construction of law it can be fas*524tened upon it, the plaintiff’s right of recovery is not impaired by such an origin for the defects.

It is said that the exception, in the second covenant, to surrender the premises in as good state and condition as when entered upon, of *wear and tear and damages by the elements,*is to be considered as grafted upon the covenant and condition to repair during the term, because it is in the same instrument, refers to the same subject, and the covenant 'is intended to carry out a similar purpose: It will, however^ be found, that there is no rule of construction or ground to sustain such qualification of the covenant and condition to' repair. Besides the fact that the covenant to surrender is printed and the other written, the two covenants relate to entirely different periods. One continues during the whole term, and the other does not have any thing upon which to operate until the term has ended. One (that to repair) creates a forfeiture, by being converted expressly into a *condition*to defeat the estate. But, in the very act of yielding them up, a malicious or negligent tenant might injure the premises or suffer them to be injured, after forfeiture had ceased to furnish a remedy. Moreover, repairs done to the building, which might not be capable of being made- without greatly improving it, might be affected by time, and, in such case, the exception in the covenant to surrender, would be to prevent the necessity of renewing such repairs, of the same quality as before, provided the general condition of the building, at the end of the term was as good as it was at the beginning, although it might have been in better condition when the repairs were put upon it.

At common law, without any express covenant, the tenant is" bound to keep the premises in “ *tenantable*repair, and surrender them at the end of the term in as good condition as the ordinary and natural decay of the premises will permit.” *(Platt on Covenants,*266.) This duty extends to preventing waste and decay of the premises, although not to permanent repairs. *(Ferguson*v. --, 2 *Esp. N. P. C.**525590.) The covenant to yield up, in the same condition, &c. assumes no more responsibility. It is, however, only a personal covenant, and does not run with the land; because the estate of the lessee in the demised premises has ended when it is called into operation. But a covenant to repair ex-' tends to the thing demised, and, being appurtenant to it, runs with the land, *(Platt on Covenants,*466,) and binds an assignee. Under such a covenant, if general, *“*the lessee’s liability is not confined to cases of ordinary and gradual decay, but extends to ” accidental injuries. *(Id.*274, *and cases cited in note y; also page*275, *and cases cited in notes b and c.)*So .that it has become customary to introduce an exception against accidents. *(Id. p.*275.) Such covenant has been construed so strictly as to be held to require the covenantor to repair, and not allow him to rebuild, as a substitute. *(Wood*v. *Avery,*2 *Leon.*189. *S. C. Sav.*96.) On such a covenant an action arises forthwith, in ease of an omission to repair, *(Luxmore*v. *Robson,*1 *Barn. & Ald.*584,) although on a covenant to leave in good condition, no action at law lies, even if the lessee pull down the buildings, *(Shep. Touch.*173,) until after the end of the term.

It is to be borne in mind, also, that in this ease the obligation to repair by the lessee, is made a *condition*as well as a covenant. A mere covenant to repair does not furnish an adequate protection to a lessor, as upon breach of such a covenant, generally, only nominal damages are given when an. action is brought before the end of the term, *(Moore*v. *Clark,*5 *Taunt.*96; *see*1 *Salk. 141; 11 Mod. 45; Molt.*178 ; 2 *Lord Raym.*798,) and it cannot be specifically enforced in equity. *(Platt on Coven.*293, *and cases cited.)*The landlord, therefore, is to be presumed to have received the power of re-entry for neglect, as his only adequate protection. An ordinary covenant to leave buildings sufficiently repaired, when contained in the game instrument with a covenant to repair on notice, is considered entirely distinct therefrom. (Harflet v. *Boucher, Cro. Jac.*644.) So, also, are covenants absolutely to repair and yield up *526the premises in repair, and to repair *on notice,*construed as distinct, *(Wood*v. *Day,*1 *J. B. Moore,*389. *S. C.*7 *Taunt.*646,) and the reasoning in the two cases last cited is eminently applicable to this. The two covenants differ entirely as to the time to which they are applicable, one being' continuous during a period, and the other ■ only capable of being broken at one point of time. The covenant to yield up in good order is, in fact, a covenant against waste, whether active or permissive, which, under the Code of Procedure, (§§ 450, 452,) could only create a forfeiture in certain cases. A lessor in a lease containing one, is entitled to an injunction against waste by lessees and their under tenants, by pulling down buildings and carrying away materials just before the end of the term, *(Mayor of London*v. *Hedger,*18 *Ves.*355,) although a covenant to repair cannot be specifically enforced. On the other hand a general covenant or condition to repair' extends as well to injuries done -by the act or omission of the lessee as to those arising from unavoidable accident. *(Pyot*v. *Lady St. John, Cro. Jac.*239.) The two in this case are palpably, therefore, not only entirely distinct, but entered into for entirely different purposes, and to accomplish entirely different ends. A forfeiture for non-performance of the condition to repair would render the covenant to surrender useless,-while the performance of the covenant to repair during the whole term, would not prevent a violation, at the moment of departure, of- that to surrender. They are, therefore, not to be construed together.

The whole of an instrument is not, necessarily, to be taken together, in order to discover but one intent in every provision in it. On the contrary, each provision having a separate effect, is to be construed by itself; otherwise there would be no purpose answered in' having separate stipulations. There is no more unreliable mode of construing a contract and defeating the purposes of the parties to it, than attempting to confine them to one. It would be useless, in such a case, for a party to. an agreement to attempt to pro*527tect himself against a special evil by a particular stipulation, if another in the same instrument could be made to control it by implication. There is no irreconcilability in the two. in question in this case, because they do not clash. One begins to operate when the other ceaáes; and there is, therefore, nothing to be reconciled.

The referee having, therefore, found that the building was permitted to remain out of repair, from whatever cause the injury arose, should have found in favor of the plaintiff.

I am of opinion that the judgment should be reversed, and a new trial ordered, vacating the order of reference.

Monell, J. concurred.

Barbour, J. (dissenting.)

This was an action, as in ejectment, to recover from the lessees thereof possession of a house on an alleged forfeiture of the term by reason of a breach of covenant to keep the premises in repair. •

The lease contains two distinct covenants in regard to repairs. By the first, the lessees undertake that they “ will *keep*the premises in good repair, and *do all necessary repairs*upon the building, and .on the gas and Croton water pipes and by the other, “ that, at the expiration of the said term, they will quit and surrender the premises in as good a state and condition as. reasonable use and wear thereof will permit, damages by the elements excepted.”

The referee has found, as matter of fact, that the buildings “ have been, and are in good repair, excepting such damages as have been caused by the reasonable use and wear thereof, and by the elements.” Upon a careful examination of the evidence, his conclusion seems to be quite correct; 'and .that decides the case. For, if the premises have been kept in good repair, except in so far as they have deteriorated by the operation, of natural causes, the stipulations of the lessees in that regard have been complied with, as it, most clearly, was the leading design and intention of the parties that the premises, should be kept in *528repair and preserved, and returned in as good order as when received, save natural decay.' I may add that, even if that were otherwise, and the contract, taken as a whole, could well be so construed as to render it the duty of the lessees to make extraordinary repairs, beyond what might be necessary to enable the lessees to keep and return the house in as good a condition as when received, still the judgment must be upheld, inasmuch as it is impossible for the court in bank to determine from the evidence before it, whether, considering the character and condition of the house, as described in the papers, the loss of a few shingles from the roof, causing but little -or no leakage, rendered it necessary to cause any immediate repairs to be made. It is easy to see that, as to one class of buildings, such repairs would be essential, while with another, they might be almost or entirely unimportant. In this case the house was very old, and much decayed and dilapidated. Suffering a few shingles to fall from such a building, in a storm, and neglecting to replace them at once, might or might not work a breach of the covenant.

The judgment should be affirmed.

Judgment reversed.