
    Henry Dazian, Henry W. Dazian and Sophie Cohen, as Executors Under the Last Will and Testament of David W. Dazian, Deceased, Respondents, v. Wole Ittelson, Doing Business Under the Firm Dame and Style of Mosher & Ittelson, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Landlord and' tenant — rent and advances — leases and agreements in general — injury to, destruction, or untenantable condition of premises — actions.
    In an action for rent, on a lease in which there is a provision that if damage by fire shall be so extensive as to render the leased premises untenantable tlie rent shall be proportionately paid up to the time of the damage and cease until the premises be put in repair, the tenant is not required to show abandonment after the fire, to entitle him to a suspension of the rent. ■
    Where, in an action for rent, the evidence introduced by defendant is sufficient to entitle him to go to the jury upon the question whether the premises have been rendered untenantable by fire, the direction of a "verdict in favor of plaintiffs is error.
    Appeal by defendant from a judgment in favor of plaintiffs rendered in the Municipal Court of the city of Dew York, borough of Manhattan, fifth district.
    Ralph B. Ittelson (Herman Ilahn, of counsel), for appellant.
    Rose & Putzel (Dorman P. S. Schloss, of counsel), for respondents.
   Guy, J.

The defendant appeals from a judgment in favor of plaintiffs in an action brought on a written lease to recover rent of certain premises for the months of May and June, 1911. 'The answer admits the making of the lease; but sets up as a separate defense that the premisés became untenantable by reason of a fire and so remained during the •months in question and thereafter; that the plaintiffs omitted to put the premises in repair; and that, under the provision of the lease set forth in the complaint, the rent was suspended during said period. The plaintiffs introduced the lease in evidence and rested. The defendant then called a number of witnesses, who testified to the fact of the fire having occurred and to the condition of the premises resulting therefrom, showing a substantial suspension of the business conducted by the defendant in the premises. The plaintiffs offered no evidence in contradiction of this testimony, and the court then directed a verdict in favor of the plaintiffs. The evidence shows that defendant continued to some extent to occupy the premises, but defendant contends that they were practically untenantable for the purpose for which they were, with plaintiffs’ knowledge, leased.

The provision 'of the lease is as follows: If the premises hereby leased shall be injured by fire or otherwise * * *;

if the damage shall he so extensive as to render the premises untenantable, the rent shall be proportionately paid up to the time of such' damage, and shall thenceforth cease until such time as the same shall be put in good repair.”

There was sufficient evidence introduced by the defendant to entitle him to go to the jury upon the question whether the premises had been rendered untenantable by the fire. The continued occupation by the tenant is some evidence of its fitness for renting or occupation; but it is not conclusive evidence on this point. Reischmann v. Hartog Candy Co., 132 N. Y. Supp. 435. The terms of the lease did not require that the tenants should abandon the possession to entitle them to a suspension of the rent. Kip v. Merwin, 52 N. Y. 542; New York Real Estate & B. I. Co. v. Motley, 143 id. 156.

The learned trial justice erred in directing a verdict in favor of the plaintiffs, and the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Lehman and Buhe, JJ., concur.

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