
    John G. Faron et al., as Executors, Plaintiffs, v. Howard S. Jones, Defendant.
    (County Court, Kings County,
    December, 1905.)
    landlord and tenant — Rights, duties and liabilities in regard to premises — Repairs—Duty of landlord — Limited to allowance prescribed in lease.
    In an action for rent, under a lease containing no covenant on the part of the landlord to repair, the tenant may not counterclaim for the amount expended by him for a new engine installed by him to replace an engine, a substantial and material part of the leased premises, which became worn out and useless during the term.
    Where a landlord expressly allows a specific sum a year from the rent reserved in thé lease, for repairs to the premises, the legal inference is that such sum is the extent of the obligation assumed by him in that regard.
    'Action upon a lease.
    Miller, Miller & Storm (Jacob P. Miller, of counsel), for plaintiffs.
    Ralph Underhill, for defendant.
   Crane, J.

The lease upon which this action for rent is based demised to the defendant for the period of ten years from Hay 1, 1902, “ the five story and basement brick factory 'building situated at the south-east corner of Hudson Avenue and Concord Street, City of Hew York, Borough of Brooklyn; dimensions about seventy-five feet by about sixty-five feet, with steam engine, boiler elevator and steam heat at the yearly rental of twenty-eight hundred dollars, with an allowance of two hundred dollars per year for repairs to the building.”

Hothing else is stated in the lease about repairs, except the tenant’s covenant to surrender at the end of the term in good state and condition.

After the tenant had continued in possession under the lease and, in September, 1903, the engine, part qf the premises demised, “through usual and ordinary wear ánd tear became worn out and of no use,” as alleged in the answer. It broke down and could not be repaired, whereupon the tenant, after notifying the landlord and waiting a reasonable time, ordered and installed a new engine at a cost of over $700.

The tenant did not vacate the premises, but has continued in possession up to this day.

However, in this action to recover the rent due under the lease for the months of January to Hay, 1904, the tenant has counterclaimed for the amount he expended for the new engine.

It is elemental, needing no other reference than the text books on the subject, as, for instance, HcAdam on Landlord and Tenant, chap. 37 that the landlord is not bound to repair when the lease contains no covenant or agreement to do so; neither is the landlord liable for repairs done by the tenant upon the demised premises unless on his special agreement to pay for them. Clancy v. Byrne, 56 N. Y. 133; Trustees of Canandaigua v. Foster, 156 id. 360; Franklin v. Brown, 118 id. 113; Meserole v. Hoyt, 162 id. 62.

If this engine, a substantial and material part of the leased premises, suddenly collapsed and became useless, I do not say that the tenant would have been bound to replace it; neither do I say that he might not, under the Laws of 1860, chapter 345, have left and vacated the premises on the ground that they had been so injured as to be unfit for occupancy and thereby relieve himself from paying rent, but that is not the same thing as saying that the landlord was bound to rebuild or replace with a new engine; he was not bound to do so in the absence of any express or implied agreement to that effect, and as the tenant did not vacate, but has continued in the premises, the statute does not aid him.

After reading the lease very carefully I can not see how any agreement to repair or replace the engine can be found in it. There is, of course, no express agreement,, and from the reading and from any reasonable construction no such undertaking on the part of the landlord can be implied.

The lessor having expressly allowed two hundred dollars per annum from the rent reserved for the repairs of the building, it is the legal inference that this was the extent of the obligation which he assumed.

The case of Ducker v. Del-Genovese, 93 App. Div. 575, referred to by the defendant, is not in point. There the landlord tried to hold the tenant to an agreement which the court said did hot by its terms and covenants cover rebuilding.

This lease in question was made between the defendant and John Gray, who died previous to the trouble out of which this action has arisen.

The defendant had been a tenant of John Gray for some years previous to the making of this lease and no doubt relied largely on previous treatment in executing a lease, not so full and complete in details as it might have been; also when the engine broke down so that he could not conduct his business and he had notified the estate of John Gray and, receiving no answer, replaced it with an engine similar in character and affixed it to the realty, he likewise, no doubt, relied upon the fact that landlords frequently do things they are not bound to do for good tenants, but these are matters which the courts cannot take into consideration, for rights are governed by the agreements which the parties have made and not by such as they might have made; neither can unforeseen hardship, inconvenience or necessity modify such contracts.

For these reasons I must set aside the verdict for the defendant and in accordance with the stipulation and statement of the attorneys, direct judgment to he entered for the plaintiffs for the full amount claimed.

Judgment for plaintiffs.  