
    Dennis Mahoney, Plaintiff, v. The Broadway Brewing & Malting Company, Defendant.
    (Supreme Court, Erie Trial Term before Court without jury,
    January, 1908.)
    Landlord and tenant — Rent and advances — Rights and liabilities — Eviction.
    Where premises have been occupied by a tenant for a saloon and are afterward closed up and left unoccupied, though the tenant leaves his property and fixtures therein, and, being unoccupied, many windows are broken out and the landlord, to protect the property, nails boards over the windows and openings caused by the glass being broken; and where the lease contained a covenant on the part of the tenant to use all reasonable precautions to prevent waste and to leave the premises in as good condition as reasonable use would permit and authorized the landlord to examine and repair the premises, the act of the landlord does not constitute a constructive eviction, although the tenant tendered him the keys of the premises which he refused to accept.
    Action for rent.
    L. J. Collins, for plaintiff.
    J. P. Schattner, for defendant.
   Wheeler, J.

This action is brought to recover for rent alleged to be due and unpaid. The defense is that the defendant was evicted from the premises in question by the acts .of the lessor. An amendment to the answer becomes necessary to enable the defendant to raise the defense of eviction, and it is contended by the plaintiff such an amendment should not and cannot properly be allowed by the trial, court. For the purposes of this action, however, we shall treat the case. as though the defense of eviction had been properly set up in the answer.

The essential facts of the case are undisputed. It appears that the plaintiff by written lease rented to the defendant the premises known as Ho. 301 Louisiana street in the city of Buffalo for a term beginning October 1, 1905, and ending May 1, 1906. A man by the name of Keefe opened a saloon in the place under some arrangement with the defendant. After the expiration of about two months, Keefe vacated the premises, leaving in the place certain bar fixtures and other furniture which the evidence shows were the property of the defendant. The property being unoccupied, many windows in the building were broken; the proof shows between fifty and sixty in 'number; in some places the window sash was broken and the building rendered liable to be entered. The defendant was notified of the unprotected condition of the property but it did nothing. Thereupon the landlord, the plaintiff, for the purpose of protecting the property and preventing further waste and damage, nailed boards over the windows and openings caused by the window lights being broken out. It is claimed these acts of the landlord constituted a constructive eviction and the tenant thereby ceased to be liable for rent. It appears the keys to the premises were tendered the plaintiff and he refused to accept them. It also appears that the furniture and saloon fixtures were left in the saloon and not removed.

We think that, under the circumstances, the plaintiff had a right to protect his property from waste and his acts did not amount to an eviction or absolve the defendant from liability for rent.

The lease expressly provides that the tenant should “ use all reasonable precaution to prevent waste.” It further authorized the landlord “ to enter the said premises at all reasonable times of the day to examine the said premises, or to make such repairs therein as shall, by the said party of the first part, be thought requisite.

The lease also provided that the tenant agreed.“to leave said premises at the expiration of the said term in as good state and condition as reasonable use and wear thereof will permit.”

The tenant thus obligated himself to prevent waste and to return the property in as good condition as received. These obligations the evidence shows it neglected to observe, although notified of conditions and requested to protect the property. Under such circumstances, it seems clear to the court, the landlord had the right to enter the leased premises and do what was proper to secure and protect the property from further damage and waste. This was all he did. He was simply doing what it was the duty of the defendant to do in the premises. Under such circumstances it would seem unreasonable to hold that the landlord in law terminated the lease by his-efforts to save both the tenant and himself from loss by neglect of the defendant-—-especially where those acts in no way ousted the defendant from possession of the leasehold premises and it could at any time restore the premises to the condition it agreed to keep them in by simply taking off the boards nailed over the windows and putting in the required glass and broken sash.

An entry in the premises by the landlord with the express or implied assent of the tenant, to make repairs therein to preserve the property, does not constitute an eviction. McKenzie v. Hatton, 141 N. Y. 6.

It is also the law that a constructive eviction not followed by abandonment of the premises and a surrender of possession to the landlord constitutes no defense to an action for rent. Beakes v. Haas, 36 Misc. Rep. 797; Boreel v. Lawton, 90 N. Y. 293; McKenzie v. Hatton, 70 Hun, 142; affd., 141 N. Y. 6.

The evidence is that there was no abandonment of the premises, but on the contrary it left in the saloon the furniture and bar which the testimony shows belonged to the defendant.

These considerations compel the court to direct judgment for the plaintiff.

Ordered accordingly.  