
    Rachel Lehmaier and Others, Appellants, v. Oliver L. Jones, Respondent.
    
      Covenant by a tenant to keep the demised premises in repair — it requires him to put, keep and leave them, in repair—what proof presents a case for a jury.—measure of damages.
    
    Covenants contained in alease, by which the lessee agrees “that he will keep said premises in good repair at his own expense during said term,” and that “ at the expiration of the said term” he will “ quit and surrender the premises hereby demised in as good state and condition as reasonable use.and wear thereof will permit, damages by the elements excepted,” run with the land and inure to the benefit of a person who purchases the demised premises during the term of the lease.
    Such covenants should be construed as obligating the lessee not only to keep the premises in as good repair as when he entered thereon pursuant to the lease, but to put, keep and leave them in good repair, having due regard to the age and class of the buildings.
    Evidence given in an action, brought against the lessee upon the covenants of the lease, to the effect that, at the expiration of the lease, the lessee did not leave the buildings upon the premises in good'repair, even with due allowance for their age and class, and that the cost of putting the buildings in proper repair would be substantial, is sufficient to take the case to the jury.
    The measure of damages in such a case is the necessary cost of making the repairs, and not the difference in the fee value of the premises.
    Ingraham, J., dissented.
    
      Appeal by the plaintiffs, Rachel Lehmaier and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 23d day of May, 1904 (as amended by an order entered in said clerk’s office on the 14th day of June, 1904), upon the verdict of a jury rendered by direction of the court in favor of the plaintiffs as to the first,, second and third causes of’ action, and upon the dismissal of the complaint by direction of the court as to the fourth cause of action, the appeal being taken from that part of the judgment which dismisses the complaint as tó the fourth cause of action.
    
      Daniel F. Kiely, for the appellants.
    
      William B. Ellison, for the respondent.
   Laughlin, J.:

This is an action upon a covenant in a lease bearing date the 31st •day of January, 1893, by which the defendant leased from the -owner the premises known as Nos. 49, 51 and 53 West Twenty•eightli street and 470 Sixth avenue in the city of New York for the term of ten years from the first day of May thereafter. There were ■old buildings on the premises at the time they were leased. The ■ plaintiffs acquired title to the premises on. the 12tli day.of July, 1902, during the last year of the leasehold period. At the expiration of the term the defendant surrendered possession. The plaintiffs claim that the defendant did not keep or surrender the premises in good repair according to his covenant. The covenants upon - which the action is based are contained in separate consecutive paragraphs of the lease as follows: “ And the party of the second part further covenants that he will keep.said premises in good repair .at his own expense during said term, and will pay all taxes and extra 'Croton charges imposed upon said premises during said term within three months after- they shall become due and payable, and,.comply with all the orders of the public authorities of. the City of New York in relation to said premises, at his own expense, during the entire term of this lease.

“ And at the expiration of the said term, the said party of the second part will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.” •

At the outset the respondent contends that these covenants did not run with the land and that, therefore, the plaintiffs' cannot maintain the action. We are of opinion that this claim is untenable. The covenants inured to the benefit of the plaintiffs the moment they succeeded to the title ; and from tliát time on the obligation of the tenant was to them, both with reference to the condition in which he covenanted to keep the premises and with reference to the condition in which he covenanted to leave them. (1 McAdam Landl. & Ten. [3d ed.] 430; Wood Landl. & Ten. [2d ed.] § 370; 1 Washb. Real Prop. [6th ed.] 403.)

The plaintiffs did not show the condition of the buildings at the time the lease was made, but based their right to recover upon evidence showing that the buildings were out of repair at the time possession of the premises was surrendered. The learned counsel for the respondent maintains that the covenant to keep the premises in good repair should be construed the same as if it provided that if the tenant desired any repairs he should make the same at his own •expense, and that, therefore, it was incumbent on the plaintiffs to .show that the premises were in a better state of repair when the lease was made. than at the expiration of the term. This is the principal question presented by the appeal. At first blush it might •seem that the covenant imposed no obligation on the part of the tenant as between him and the landlord, but it is to be borne in mind that in the absence of an express covenant the landlord is not obliged to make repairs to the demised premises, and while, for greater caution, when it is the understanding that the tenant is to make such repairs as he needs, it is customary to incorporate a clause ito that effect, the clause is ordinarily quite different from that contained in this lease. This appears to be an express covenant made by the tenant to his landlord, and it is to be borne in mind that the lease was for a long term, which does not make it such a hardship .as at first it might seem. Wood, in his work on Landlord and Tenant (§ 372), says, “ A covenant to repair, keep and leave the premises in repair at the end of the term does not bind the tenant to keep or leave them in any better repair than they were when he went into possession; he is merely bound to maintain them,as they are,” and he cites as his only authority for the proposition the' case of West v. Hart (7 J. J. Marsh. [Ky.] 258), which appears to so hold. In the 2d edition of this author’s work, however, while the original te'xt is continued in spction 369; the case of Payne v. Haine (16 M. & W. 541), holding the contrary rule, is cited in a previous note to said section with-seeming approval. (Wood Landl. & Ten. [2d ed.] 806, 807.) With this exception, no authority has been cited, and we find none sustaining the doctrine of the Kentucky case, and we are of opinion, that it is not- in accordance • with the trend of judicial authority in other jurisdictions. McAdam, in liis excellent work on Landlord and Tenant (Vol. 1 [3d ed.], p. 429), says; “ Under a covenant to ‘ keep ’ in repair, if to keep in repair it is necessary that the rooms should first be put in repair, the covenantor is bound to perform that duty.” The rule is stated in- the American and" English Encyclopaedia of Law (Vol. 18 [2d ed.], p. 252) as follows : “ But an agreement by the tenant to keep the premises in good repair or tenantable repair, or the like, requires the- tenant to put the premises in such repair in case they are not so at the time of the letting.” In Green v. Eden (2 T. & C. 582) the tenant covenanted to “keep” the premises “in good repair and condition” during the term. The roof and steps Were in bad condition at the commencement of the term, and became worse before the tenant left. The landlord made the necessary repairs, and it was held that he could recover for the same from the tenant. I think this covenant should be construed as obligating the- tenant not only to keep the premises in as good repair as when he enters, but to put, keep and leave in good repair, having due regard to the age and class of the buildings, and that this construction is sustained by authority. (Payne v. Haine, supra; Green v. Eden, supra; Proudfoot v. Hart, L. R. 25 Q. B. Div. 42 [1890].; Douse v. Earle, 3 Lev. [1689] 264; Myers v. Burns, 35 N. Y. 269; Ward v. Kelsey, 38 id. 80; Lockrow v. Horgan, 58 id. 635; Heintze v. Erlacher, 1 City Ct. Rep. 465; 1 Add. Cont. [Abb. Am. ed.] *239; 1 McAdam Landl. & Ten. [3d ed.] 429.) Of course, the tenant .is not obliged to keep the buildings on the demised premises up as new buildings, and the extent of the repairs he is obliged to make necessarily depends upon the age and class, of the buildings, (1 McAdam Landl. & Ten., supra, and cases cited.)

There is evidence in the record that the buildings upon the demised premises were not left in good repair, even with due allowance for their age and class, and that the cost of putting them in proper repair would be substantial. This was sufficient to take the case to the jury. (McGregor v. Board of Education of City of N. Y., 107 N. Y. 511.) We think the measure of damages in such case, in an action by the landlord against the tenant, is the necessary cost of making the repairs. (Green v. Eden, supra; Schick v. Fleischhauer, 26 App. Div. 210; Lockrow v. Horgan, supra; McGregor v. Board of Education of City of N. Y., supra; Webster v. Nosser, 2 Daly, 186.) To hold that the measure of damages would be the difference in the fee value would not be a just rule either to the landlord or to the tenant, for the reason that the land might appreciate or depreciate in value out of all proportion to the damages contemplated by the parties. Moreover, holding the tenant liable for the necessary expense of making, the repairs is merely compelling him to pay the cost of what he covenanted to do. The court excluded evidence of the cost of making the necessary repairs, and counsel for the plaintiff duly excepted. If we are right in the rule of damages, this necessarily requires a new trial.

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P.J., Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented. . .

Judgment reversed,- new trial ordered, costs to appellant to abide event. >  