
    Leon S. Meyers, Appellant, v Leon A. Liebeskind, Respondent.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Lease — Failure of landlord to give possession — Action to recover rent paid in advance.
    Where the portion of an apartment house in the city of New York leased to plaintiff is not ready for occupancy at the time agreed upon, owing to the landlord’s failure to obtain a certificate that the building conformed to all the requirements of the Tenement House Act (L. 1901, ch. 334, § 122) the plaintiff may rescind the contract of letting and in an action for money had and received recover the amount of the first month’s rent paid in advance.
    Appeal.by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, twelfth district, borough of Manhattan.
    Black, Olcott, Gruber & Bonynge, for appellant.
    J. Charles Weschler, for respondent.
   Davis, J.

The parties to this action on the ninth day of September, 1904, entered into a written lease whereby the defendant let to the plaintiff an apartment consisting of eight rooms and a bath on the third floor of an apartment-house then in course of construction, for the term of one year, from October 1, 1904, at a rental of $125 per month, payable in advance. The plaintiff on the day the lease was drawn paid the sum of $125 for the rent of the month of October. Upon October first the plaintiff, upon seeking to obtain possession of his rooms, found that the building was unfinished and incomplete, unfit for occupancy and that mo certificate had been obtained, as required by section 122 of the Tenement-House Act, Laws of 1901, chap. 334, which prescribes that: “No building hereafter constructed as or altered into a tenement-house shall be occupied in whole or in part for human habitation until -the issuance of a certificate by the department aforesaid that said building conforms in all respects to the requirements of this act.” He thereupon demanded the return of the $125 paid by him, and upon refusal by the defendant to comply with such demand brought this action for “ money had and received and for breach of contract.” The court below rendered a judgment in favor of the defendant, from which judgment this appeal comes up. It was proven that at the time of the trial (October 25, 1904) the apartments rented to the plaintiff were not ready for occupancy, and it was conceded that the certificate above referred to had not been obtained. The court below bases its decision in favor of the defendant upon decisions of the courts of this State (referring to that of Carey v. Kreizer, 26 Misc. Rep. 755), where the doctrine is enunciated “ that in the absence from the lease of a specific agreement to repair, the rule of caveat emptor applies, and the tenant is bound irrespective of the neglect of the landlord to put the premises in condition for the uses contemplated.” In this position we think that the learned trial justice was in error. In the line of cases referred to by him the buildings rented were already in existence and their present condition easily ascertainable. In the case at bar the building was being erected and at the time of the making of the lease had no existence whatever as a dwelling. This action is not for failure to make repairs but upon an agreement to “ let ” the premises to the plaintiff upon October 1, 1904, which agreement carried with it the implied covenant that upon that day the said premises should be fit for occupancy in fact as well as according to law. Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 211, 212. The right to a return of the money paid in advance as rent upon the failure of the defendant fully to perform his contract is unquestionable. Some stress is laid upon another instrument in writing, executed by the parties at the time the lease was made, which was introduced as evidence and which reads as follows :

“ Hew York, Sept. 9, 1904.

“ It is agreed between both parties that should the certificate of the Tenement House and Building Departments not be delivered in time the party of the second part (appellant) shall not hold the party of the first part (respondent) responsible or liable for any damages owing to sleeping incapacity and rent to be adjusted accordingly as agreed pro rata per month.”

Whether or not this is to be regarded as a portion of the lease is immaterial. Its only value is that it supports the contention of the plaintiff that the rooms were to be delivered to him October first in a completed condition, except possibly as to sleeping capacity, in which event the defendant should not be liable for damages arising from such sleeping capacity.” The defendant himself testified that up to the time of the trial there were no tenants in the building, and that the apartments were not ready for occupancy owing to his failure to obtain the certificate aforesaid. The defendant was, therefore, on October first and up to the day of the trial unable to deliver possession of the premises to the plaintiff, and this inability was occasioned by the fault of the defendant alone, and he was, therefore, guilty of a breach of his agreement that he had power to let and would give the plaintiff possession of the premises. Under the facts and circumstances disclosed by the testimony in this case it is clear that plaintiff had a right to rescind the contract and to recover from the defendant the consideration advanced. Mansfield v. N. Y. C. & H. R. R. R. Co,, 102 N. Y. 205, 211; Friedland v. Myers, 139 id. 432-436.

It follows that the judgment must be reversed.

Soott and MaoL'eah, J.I., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  