#### Charles H. C. Beakes, Respondent, *v.*Regina Holzman, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Landlord and tenant — Landlord’s breach of covenant to repair — Tenant notified landlord would leave — Subsequent agreement by landlord — Damages.

The liability of a landlord for breach of a covenant to repair, is. either the actual cost of making the needed repairs or the difference in the rental value of the premises as they were and as they would have been had the contemplated repairs been made.

Where a tenant, after notifying her landlord of her intention to vacate the premises on account of defective pipes, remains in consideration of the landlord’s agreement to repair all the plumbing and pay all future damages caused by water coming into the premises by reason of defective pipes, the agreement is founded upon a valid consideration and .is enforcible, and if the landlord fails to repair the plumbing it is the duty of the tenant to make diligent effort to reduce her damages by making necessary repairs, and whether or not she did is a matter of proof, not of pleading.

So held, where in an action for rent the answer set up a counterclaim for damages because of the landlord’s failure to keep such agreement.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of ¡New York, seventh district, borough of Manhattan.

Marks & Marks, for appellant.

Edward Galinger, for respondent.

*385Truax, J.

This action was brought to recover rent for the months of July and August, 1904, for premises occupied by the defendant. The liability for payment of rent was not denied. The answer sets up a counterclaim, which set forth that the defendant was a tenant under a monthly hiring, that prior to August, 1904, the pipes and plumbing in the premises had frequently burst, doing damage to defendant’s merchandise; that in June defendant notified plaintiff that she should vacate the premises on account of the defective condition of the pipes; that plaintiff thereupon promised and agreed that if defendant would remain as a tenant of the plaintiff, the plaintiff would repair all plumbing in the premises and would pay defendant all damages caused by water coming into the premises thereafter by reason of any defective pipes; that in consideration of such agreement defendant remained in said premises and that in the month of August water again came into her premises through the defective pipes and caused the damage for which she counterclaimed. At the day of the trial, upon motion of plaintiff’s counsel, the counterclaim was dismissed and judgment given for the plaintiff upon the pleadings. Where there is an ordinary covenant to repair made by a landlord, the measure of damages is bounded either, by the actual cost of making the needed repairs or the difference in the rental value of the premises as they were and as they would háve been had the contemplated repairs been made. Schick v. Fleischhauer, 26 App. Div. 210; Reiner v. Jones, 38 id. 441; Golob v. Pasinsky, 72 id. 176; Frank v. Mandel, 76 id. 413 ; Goldberg v. Besdine, 76 id. 451 and if the promise of the plaintiff had been no greater his liability would have been fixed within that limit, but he undertook to do more. The promise was to compensate defendant not merely for the cost of repairs, if the tenant should make them, but for all damages occasioned by reason of the defective pipes. This promise was founded-upon a valid consideration and was not an illegal obligation assumed by the plaintiff. Bronner v. Walter, 15 App. Div. 295; Rauth v. Davenport, 60 Hun, 70. The damages thus agreed to be paid by the landlord must be supposed to have been contemplated by the parties when such agreement was *386made. Of course it was the duty of the defendant to make diligent effort to reduce the amount of damage by making necessary repairs and- she could not permit the pipes to remain out of repair for an unreasonable length of time and thus enhance h<*r damages, but whether or not she did so is a matter of proof and not pleading. Upon the pleadings the counterclaim should not have been dismissed and the judgment must be reversed.

Scott and Dowling, JJ., concur.

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