
    Sarah Lazarus and Others, Respondents, v. Bernhard J. Ludwig, Appellant.
    
      Landlord and tenant — the right to enforce an agreement by the tenant to restore the premises — it is not waived, by his continuing in possession after Ms original term —he cannot put in evidence a lease which he has successfully repudiated.
    
    Lessees who had permitted a sub-lessee, whose lease expired May 1,1895, to make certain alterations in the demised premises upon condition that, if required, he would restore the premises to their original state at the expiration of the term, notified the sub-lessee in February, 1895, to restore the premises to their original condition at the termination of the lease. Again, in March, 1896 (the sub-lessee'having held over), like notice was given. In November, 1896, the sub-lessee was evicted.
    
      Held, that the lessees had not waived their right to compel the sub-lessee-to perform his covenant to restore the premises to their original condition, but had .■simply extended the latter’s time of performance until the termination of his ■actual occupancy;
    That,' in an action to recover damages for the breach of such agreement, the. court properly refused to admit in evidence a lease executed by the lessees to the sub-lessee after the expiration of the original term, which lease had been . repudiated by the sub-lessee and had been adjudged to be not binding upon him.
    Appeal by the defendant, Bernhard J. Ludwig, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 29th day of March, 1899, upon the verdict of a jury, and also from nn order, entered in said clerk’s office on the 27th • day of April, 1899, denying the defendant’s' motion for a new trial made upon the minutes.
    
      William Strauss, for the appellant.
    
      Nelson S. Spencer, for the respondents.
   Barrett, J.:

On the 23d day 'of May, 1885, the plaintiffs and one Emma Lazarus leased to the defendant certain premises in the city of Hew York for a term expiring on the 1st day of May, 189-5. Emma Lazarus- died in the year 1887, leaving the plaintiffs her heirs at law. The case may, therefore, be conveniently treated by omitting further reference to her. The lease contains a covenant on the defendant’s part not to make any alteration in the premises without the plaintiffs’ written consent. In the year 1890 the plaintiffs, at the defendant’s ^request, gave their consent to certain alterations which he proposed to make. This consent was so given upon condition that the ■dofendant restore the demised premises to their original state, if .required, at the expiration of the lease. The alterations were made pursuant to this consent and upon this condition, and the effect was "that such alterations were so made upon what amounted to a collateral agreement on the defendant’s part to restore the premises as indicated. The action is for a breach of the latter agreement. The •defense is, in substance, that the plaintiffs waived the deferidant’s ¡liability to restore under his agreement, and the appellant points to ¡several incidents which, from his point of view, constitute the waiver. It appears that, on the 7th of February, 1895, the plaintiffs notified "the defendant to-restore the premises to their original condition at the termination of the lease. This notice was repeated on the nineteenth -of the same month. "When these notices were given the plaintiffs ¡supposed that the defendant’s lease would necessarily terminate upon "the first of the next month (March), instead of the first of the following May. This was because the plaintiffs themselves were lessees •of one Yan Beuren, and their lease expired on the first of March. The' -defendant in the sub-lease had taken his term from the plaintiffs subject to the procurement by the latter of a renewal from Yan Beuren. "The notices were given upon the assumption that this renewal could' 'not be had. A little later, however, namely, on the twenty-eighth of February, thé plaintiffs notified the defendant that, as the then present •owner of the premises had neither renewed their lease nor paid "them the value of the building, they would not surrender the premises on "the first of March. The effect of this notice was to permit the defendant, so far as the plaintiffs were concerned, to remain where "they were under the sublease until the first day of May, and they so .remained. After, the first of May the defendant held over, and the "plaintiffs instituted summary proceedings against him to recover possession of the premises. A warrant was issued in these proceedings •on the 19th day of June, 1895. But still the defendant held on,

Shortly before the warrant was issued, namely, June 13, 1895, "the plaintiffs executed an agreement leasing the premises to the •¡defendant from month to month, beginning June first, and providing that either party might terminate the agreement upon notice to the other of five days. The plaintiffs supposed that the defendant; acknowledged this agreement as made on his part as well, but they were undeceived when he repudiated it in the further summary proceedings which they were subsequently compelled to institute against; him. The court held in these latter proceedings that, the supposed agreement in question of June 13, 1895, was not binding upon.the» defendant, and the plaintiffs were consequently compelled to proceed against him de novo, as one holding over under no agreement providing for the duration of the term. In the latter proceeding he was finally evicted in ¡November, 1896. In the previous IVIarch the plaintiffs notified the defendant, that they elected to terminate the-lease upon the thirty-first day of the same month, and he was again required at once to restore the premises, under his collateral agreement, to their original condition.

We see in all this nothing suggestive of the Waiver which the» defendant claims. The plaintiffs distinctly notified him in February,. 1895, that they required restoration “ at the termination ” of his lease-The time of performance under that requirement was undoubtedly extended, but never waived. The defendants obligation. survived all the incidents subsequent to the termination of the original lease.. So long as . his occupancy continued under some — it matters not, what — arrangement, it was reasonable that he should have the continuous benefit of the alteration. When, however, that occupancy-terminated, it was equally reasonable that the plaintiffs should receive.the premises back in their original condition. That was the clear-understanding of the parties as evidenced by all that happened. There was, in fact, no waiver, express or implied, on either side.. There was simply an implication extending the time qf performance-until the appropriate occasion, namely, until the termination. of the» defendant’s actual occupancy. When the defendant finally got out. of the premises, without restoring them to their original condition, he at once became liable for the breach of his collateral agreement.. We think, therefore, that the case on this heact was properly disposed, of by the learned trial justice.

The proof of damage was sufficient to sustain the verdict. It is. true that it rests largely upon the testimony of an expert builder,, and that the expert had not examined the premises prior to or at th& time of the original alterations. We think, however, that his estimate of the cost of restoring the premises to their original condition: was sufficiently connected with proof of that condition, and that he-spoke from information given him of that proved condition as well as-from present observation of what was patent with regard, to the alterations. This is questioned, but a careful consideration of the evidence-leads us to the conclusion that criticism on that head was for the jury-.

It is also contended that the learned court should have admitted,,, at the defendant’s request, the lease which the latter repudiated in: the summary proceedings. But as this lease was there held not to-be binding upon the defendant, we'can see no force in the appellant’s present contention with regard to it. In our view of the-main question it was of no consequence what the general nature of' the agreement was under which the defendant retained possession, after the termination of his original tenancy. So long as such agreement contained no waiver of the collateral agreement to-restore, it had no bearing upon the breach of that agreement. The-supposed lease of June 13,1895, contained no reference to the latter-agreement— either express or fairly to be implied from its language-

We think, therefore, that the judgment appealed from was right: "and should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ.„ concurred.

Judgment affirmed, with costs.  