
    Henrietta Hecht, Appellant, v. Edward C. Heerwagen, Respondent.
    (New York Common Pleas
    General Term,
    December, 1895.)
    A provision in a lease that if, in case of a fire, the premises. are so damaged that the landlord shall decide to rebuild, the term shall cease and. "determine and the accrued rent be paid up to the time of the fire, is-equivalent to an express covenant to'apportion the rent in such an event,,' and where such a fire occurs about the middle of a month, and the.land- • lord elects to rebuild, only the rent to> the time of the fire can be recovered, although the month’s rent was due on the first of the month. Heeht v. Heerwagen, 13 Mise. Rep. 316, affirmed. .
    Appeal from judgment of the General Term, City Court, affirming judgment on verdict.
    Bent being payable in advance on the first of each month, upon the termination of the tenancy on the twelfth of August the landlord sues for the entire rent of that month. By provision of the lease, “ in case of fire, * * * if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease and the accrued rent be paid up to the time of the fire.” A fire occurring on the twelfth of August, the landlord elected to rebuild. The court directed a verdict for rent only to the twelfth, instead of the whole month. .
    
      Arthur Furber, for appellant.
    
      Mobt. E. JDeyo, for respondent.
   Peyor, J.

The authorities adduced by the learned counsel for the appellant, to which may be added Craig v. Butler, 83 Hun, 286, are ,conclusive, of the proposition that the entire rent for the month of August was due on the( first day of the ■ month. Hence, aside from any provision in the lease qualifying the legal rights of the parties, the termination of the tenancy on the twelfth of August would be no answer to an action for all the rent of the month. . But the parties have expressly stipulated that wheu, on the occurrence of a fire, the landlord elects to end the term, the “ accrued rent shall be paid up to the time of the fire.” . The landlord, knew that the entire rent .for August would accrue and be due on the first day of the month-.; .what, then, did he mean by the pro- . vision that accrued rent should be paid up to' the time of the fire ? . He could intend but one thing, "namely, that although ■all the rent for August accrued on the first day of the month, yet the tenant should pay rent only to the twelfth, the time . of the fire. Upon any other construction the words up to the time of the. fire ” would be- utterly without' .operation and effect.- Of course, it was competent .for the parties, by express covenant, to apportion the rent (Zule v. Zule, 24 Wend. 76; Church v. Seeley, 110 N. Y. 457),. and this they have done by terms of which the meaning is. Unmistakable.

We, are content,, without further argument, to affirm the judgment on the opinion' of Conlah, J., in the court below.

Judgment- affirmed) with costs:

Halt, Oh. J./and Bisohoff, J., concur.

Judgment affirmed; with costs.  