
    Frederick Zimmer, Resp’t, v. Louis Black, Joseph Meyer and Benjamin Meyer, App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    1. Lease—Damase to fbemises by fire—Removal.
    Where leased premises are damaged by fire so as to be unfit for occupancy, the tenant should have a reasonable time to remove.
    2. Same.
    In an action for rent of leased premises the defense was that on the 25th of July the premises were so damaged by fire as to be unfit for occupation, and that defendants removed therefrom with due diligence on the 2d of August. It appeared that defendants’ goods were insured, and that it was important that they should not move until they did on account of such insurance. Held, that the case should have been submitted to the jury on the questions as to the condition of the premises and defendants’ diligence in removing, and that a direction of a verdict for plaintiff was error.
    Appeal by the defendants from a judgment of the county court of Monroe county, on appeal from the municipal court of the city of Rochester in favor of the plaintiff, and from an order denying a new trial.
    
      C. A. Keeler, for app’lts; H. B. Hallock, for resp’t.
   Corlett, J.

On the 28tli day of December, 1888, the plaintiff executed a lease to the defendants of that part of the Zimmer block on Mill street, in the city of Rochester, known as store No. 70, with the basement and two floors above, the lessees to take possession the first day of February, 1889, the lease to continue for three years, ending on the 31st of March, 1892. The rent was $700 a year, payable monthly in advance.

On the 25th day of July, 1889, a fire occurred which rendered the leased premises untenantable, and the defendants left them on the 2d day of August following.

This action was brought to recover the rent for the month of August, 1889. The defense was that before the 1st day of August the premises were so damaged by fire and water as to become untenantable and unfit for occupation, and that the defendants removed therefrom with due diligence, which removal occurred on the 2nd day of August, and that they surrendered up the premises to the plaintiff and were thus relieved from the payment of further rent

Section 1 of chap. 345 of the Laws of 1860 is as follows: “The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises and of the land so leased or occupied.

The action was brought in' the municipal court of the city of Rochester, and in August, 1889, was tried before the court and judgment rendered in favor of the plaintiff for the August rent

An appeal was taken to the county court of Monroe county for a new trial, which was had in April, 1890, before that court and a jury. At the close of the evidence the court directed a verdict for the plaintiff. A motion was made by the defendants for a new trial, which was denied. The defendants appealed to this court from the judgment entered upon the verdict and the order.

On the 3d day of August the defendants paid in full to the plaintiff the rent for July, and tendered it for the first three days of August, which the plaintiff refused to receive.

The defendants’ stock in trade was insured, on account of which the insurance companies paid thirty-three and one-third per cent damages. The evidence tended to show that it was important that the defendants should not move on account of the insurance until the time they did. •

On the 3d day of August the defendants served notice on the plaintiff of a surrender of the premises.

At the close of the evidence in the county court the defendants asked to go to the jury upon the following questions:

First. Whether at the time the premises were vacated they were in an untenantable condition.
Second. Whether on July 25th the premises were so injured by the elements or from any other cause as to be untenantable without fault of the defendants.
Third. Whether the defendants exercised reasonable diligence in removing from the premises after the fire.

The motion was denied and a verdict directed in favor of the plaintiff for the rent of the month of August, 1889. Exceptions were taken by the defendants.

In Vann et al. v. Rouse et al., 94 N. Y., 401, it was held that chapter 345 of the Laws of 1860 secured to a tenant the benefit therein expressed in the absence of an express written agreement indicating an intent to waive it.

In Bassett v. Dean, 34 Hun, 250, decided in the first department, in October, 1884, it was held that under the above chapter, when the premises become untenantable in consequence of fire, the tenant is allowed a reasonable time within which to remove his property from the premises occupied by him; and what is a reasonable time should be submitted to the jury.

A like decision was made by the same court in Wallace v. Coe, in January, 1888. 13 N. Y. State Rep., 546.

The above' cases are decisive of the one at bar, unless overruled.

Johnson v. Oppenheim, 55 N. Y., 280, has no application. There the lessees occupied the premises after the injury from June, 1869, until the 30th of September following. The court held that the tenant had retained possession so long that to relieve him from payment would secure him the benefit of the lease and at the same time allow him to repudiate its obligations.

Pearson v. Gillotte, 15 N. Y. State Rep., 395, decided in the city court of New York, was based on that case.

In Smith v. Kerr, 108 N. Y., 31; 13 N. Y. State Rep., 115, the point decided was that when the leased premises are destroyed by fire, no obligation rests upon either landlord or tenant to rebuild in the absence of express covenants. That in such case the tenant has an option either to declare the lease at an end and surrender possession, or continue to the expiration of the term, and that where a tenant continues to occupy he is liable. Also, that a parol agreement to change the amount of rent, was not, upon the facts appearing, available.

In that case the store was burned on the 5th day of September, 1880. After the fire the plaintiff erected a brick building. While this was being done it was verbally agreed that after the new building was completed the rent should be fifty dollars a month instead of twenty-five dollars. The defendant did not surrender the old lease to the plaintiff. The defendant having refused to pay the fifty dollars a month, summary proceedings were resorted to with success. On appeal this court held that the verbal agreement could not be enforced, and reversed the adjudication below. 33 Hun, 567. The questions involved in the case at bar were not before the court or determined.

It is obvious that when by disaster the premises become unfit for occupancy, the tenant should have a reasonable time to remove. This was decided in the cases first above cited, and the soundness of those decisions has never been questioned.

The case should have been submitted to the jury as requested by the defendants.

It follows that the judgment should be reversed, and a new trial granted.

Judgment and order reversed and new trial granted in county court, with costs to abide event.

Dwight, P. J., and Macomber, J., concur.  