
    Mary Rich, Resp’t, v. John Doyenn, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    Landlord and tenant — Reletting—Estoppel.
    The landlord, by reletting the demised premises for a less rent after the tenant has abandoned them without sufficient cause, is not estopped from holding the tenant for the deficiency. .
    Appeal from a judgment in favor of the plaintiff.
    
      Henry W. Brush, for app’lt; E. A. Hayes, for resp’t.
   Lewis, J.

This action was brought against the defendant to recover rent alleged to be due the plaintiff for the use of premises consisting of the first floor and two rooms upon the second floor of a building on Seneca street, in the city of Buffalo, under a written lease executed by the parties. The term was for three years, commencing on the 1st day of May, 1888. The rent secured by the lease was $300 a year, payable in monthly installments of $25 in advance. The defendant took possession of the leased premises, and continued in occupation thereof until the 15th day of October, 1889, when he vacated them for the alleged reason that they had, through the fault and negligence of the plaintiff, become untenantable, owing to defective sewering and plumbing, which allowed filth and water to accumulate in the cellar of the building. The defendant paid the rent as it came due, up to and including the month of October, 1889, and thereafter neglected to pay rent, The premises remained vacant for five months after defendant left them. The plaintiff then leased them to another tenant for $18 a month. This action was commenced on the 19th day of June, 1890. There was nothing in the lease requiring the plaintiff to make repairs upon the premises. It contained the ordinary clause requiring the tenant to keep the premises in good repair. The defense interposed and relied upon by the defendant was — First, that the premises had become untenantable; and second, that the plaintiff consented to cancel the lease by accepting the key of the house and taking possession of the premises. There was evidence tending to show that when the defendant took possession of the property there was water in the cellar, which was pumped out from time to time. There was no sewer in the street in front of the premises, and none in the cellar, at the time of the leasing. Afterwards, and in the spring of 1889, a sewer was constructed in the street in front of the premises, which was connected with the cellar of the house by a sewer in a proper manner, so as to drain the water from the cellar. A stench trap was put into the sewer in the cellar, which prevented the sewer gas from entering the cellar. The evidence upon this question was conflicting, as was the evidence as to whether the plaintiff accepted the key of the house and consented to cancel the lease. The referee, upon sufficient evidence, found for the plaintiff upon these questions. The lease provided that the plaintiff should construct a barn for the use of the defendant. The plaintiff failed to fully perform his agreement in that respect, and the referee allowed the defendant a counterclaim for $25 on account of work and materials which he furnished to complete the barn. Reletting the premises, under the circumstances disclosed, did not estop the plaintiff from claiming of the defendant the $7 a month difference between the amount defendant had agreed to pay and the $18 a month paid by the new tenant. Reletting the premises did not give the defendant any cause for complaint, for he was thereby benefited to the extent of $18 a month during the remainder of the term of the lease. Doolittle v. Selkirk, 58 St. Rep. 328; Winant v. Hines, 14 Daly, 187; Joslin v. McLean, 99 Mich. 480. The referee inadvertently presumably, included in the amount which he found to be due the plaintiff $7 a month for ten months after the commencement of the action, making in all $70, to which he added interest upon the sums respectively as they fell due. This was improperly included in his report and in the judgment. The judgment should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff within twenty days give to the defendant a written stipulation, consenting to reduce the judgment to the extent mentioned. In case the stipulation be so given, the judgment as so modified should be affirmed, but without cost of this appeal to either party.

All concur.  