
    Kalman Lewis, Appellant, v. Theodore Ritoff, Respondent.
    (Supreme Court, Appellate. Term,
    November, 1906.)
    Landlord and tenant — Rent and advances: Rights and liabilities—*
    Failure of landlord to repair; Actions — Conditions precedent.
    A landlord’s failure to make repairs, orally agreed to be made before the commencement of a new term, does not relieve the tenant from his obligation to pay rent where he continues to occupy the premises after the expiration of his former lease.
    In an action for such rent, the tenant may either recoup such damages as he has sustained by his landlord’s failure to fulfill his agreement as to repairs, or bring a separate action for the recovery of such damages; but where no counterclaim is interposed for such damages a judgment in defendant’s favor, rendered upon the theory that, as plaintiff had failed/to perform a condition precedent to thé lease, defendant was relieved from payment of such rent, should be reversed.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    Meyer Greenberg, for appellant.
    George Grau, for respondent.
   Gildesleeve, J.

The defendant was a tenant of plaintiff under a lease which expired on May 1, 1906, at a monthly rent of forty-seven dollars and fifty cents. Some time in March or April, 1906, defendant told plaintiff he would like to renew the lease for another year. Plaintiff agreed, provided defendant would pay fifty-two dollars a month rent. It was finally agreed that a lease for another year should be given, by which defendant should pay fifty-two dollars a month, and plaintiff agreed to make certain repairs to the premises before the first of May. A written lease was prepared but never executed. Defendant, however, remained in possession of the premises through the month of May, 1906, although no repairs were made by the plaintiff. The defendant refused to pay rent for said month of May, 1906, and plaintiff brought this action for fifty-two dollars as rent for said month. The justice found for defendant. Plaintiff appeals. Accepting the defendant’s version to be correct as to the facts of the case, he would have been justified in refusing to accept the lease from May 1, 1906, upon the failure of plaintiff to do the repairs. Kelsey v. Ward, 38 N. Y. 84. Instead of doing this, however, he continued to occupy the premises, with full knowledge of plaintiff’s omission to keép his agreement. In this action for rent no counterclaim is interposed for damages suffered by reason of plaintiff’s failure to repair, and judgment was rendered ,cn the theory that, as plaintiff had failed to perform the condition precedent to the lease, defendant was relieved from bis obligation to pay rent thereunder, notwithstanding his continuance in occupation after the expiration of the former lease. This theory was erroneous, as the landlord’s failure to repair the premises, as covenanted, before the term begins, is no bar to an action for rent where the lessee has nevertheless taken possession. .Chapl. on Landl. & Ten., 110. The remedy of the lessee is by recouping from the rent such damages as he has sustained by the failure of the lessor to fulfill his contract, or to bring a separate' action for the recovery of such damages. Kelsey v. Ward, 38 N. Y. 83. The failure to repair was.no defense to this action for rent, although it might have been ground for counterclaim. McAdam Landl. & Ten. (3d ed.) 920.

The defendant, if he had made- the repairs himself, could have counterclaimed the cost of such repairs, or, if he did not do the repairs himself, he could have counterclaimed the difference in the value of the use of the premises as they were and as the plaintiff had agreed to put them, and he could have proved his actual damage by showing the difference in value. Cook v. Souls, 56 N. Y. 420.

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

Dugro and Dowling, JJ., concur.

The judgment must be reversed and a new trial granted, ’with costs to appellant to abide event.  