#### Alex Weinberg, Respondent, *v.*Louis Savitzky and Isaac M. Colomb, Appellants.

(Supreme Court, Appellate Term,

April, 1905.)

Lease — Provision in case of damage by fire.

Where a lease provides that in case of damage by fire so extensive as to render the premises untenantable the rent shall cease until such time as the building shall be put in complete repair, but does not provide that in that event the lease shall terminate, and the premises are rendered untenantable by fire in the middle of February and the repairs are not completed until after April first, the tenants are not liable for the March rent, though they never surrendered possession although unable to carry on their business there.

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

*133S. C. Sugarman, for appellants.

Abraham B. Schleimer, for respondent.

Scott, J.

This action seems to have been decided in plaintiff’s favor upon the assumption that the rights of the parties are to be determined by chapter 345 of the Laws of 1860, which provides that “ The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.” This statute was re-enacted in substantially the same terms by section 197 of the Real Property Act (Laws of 1896, chap: 547). It may be that in order to take advantage of this statute the tenant must, quit and surrender possession of the leased premises, but that question does not arise here. The statute, by its own terms, becomes operative “ unless otherwise expressly provided by written agreement or covenant.” It is otherwise expressly provided between these parties by written agreement contained in the lease. That agreement provides for three contingencies. The first is the case of partial damage by fire, not sufficient to render the premises untenantable, in which case the landlord is bound to repair as speedily as possible. The third contingency is the case of a total destruction, in which the rent is to be paid up to the time of the fire, and the lease is thereupon terminated. The second-contingency, which is presented here, is the case of damage by fire so extensive as to render the premises untenantable, in which case the rent is to- cease until such time- as the building shall be put in complete repair, but it is- not provided in this event that the lease shall terminate. This special agreement took the case out of the operation of the statute above cited and furnishes the sole- rule under which *134the respective rights of the parties are to he determined Bacon v. Alb. P. W. P. Co., 22 Misc. Rep. 592; Tocci v. Powell, 9 App. Div. 283; Butler v. Kidder, *87*N. Y. 98. The fire occurred on the fifteenth of February and it ia clearly shown that the damage was not completely repaired until after April first. This action is for rent for the month! of March. The evidence, uncomtradicted by plaintiff, shows that the fire rendered the premises quite untenantable: It is true that defendants never surrendered possession, but conttinued to visit the premises from time to time, perhaps daily, and kept in the premises certain of their stock and tools, but it does not appear that they were able to carry on their business. While continued occupation may raise a presumption of continued tenantability, it is not conclusive evidence thereof. There may be an occupancy not inconsistent with a claim that the premises occupied were in fact untenantable (Kip v. Merwin, 52 N. Y. 542), and in our opinion the evidence her© presents just such a case:

The judgment must be reversed and a new trial granted) with costs to the appellants to abide the event.

Leventritt and Greenbaum, JJ., concur.

Judgment reversed and new trial granted, with costs to appellants to abide event. .