
    Richard S. Roberts, Resp’t, v. Cora C. Freeborn as Executrix, etc., App’lt.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed May 18, 1888.)
    
    Leases—Breach oe covenant—What necessary to establish—Extent OE LIABILITY EOR.
    A lease contained the covenant on the part of the lessee that he should, at the expiration of the term, quit and surrender the demised premises in as good state and condition as reasonable use and wear thereof would permit, damage by the elements excepted, and that the premises should be restored to the condition in which they were at the time of letting. Held, that in an action for the breach of this covenant in not restoring the premises in the same condition as they were at the time of letting, it was essential to show what that condition was, and that the lessee could not be held responsible for deterioration of the premises which took place previous to the time of letting.
    This action was brought to recover damages for alleged breach of a covenant contained in a lease made by plaintiff to defendant’s intestate.
    The lease was made on or about the first day of February, 1874, for a term of one year from that date, and. covered the premises known as No. 251 South street, in the city of New York, and contained the following clause:
    “And at the expiration of the said term, the said party of the second part will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damage by the elements excepted, and to be restored to the condition they are in at this time.”
    Thereafter, by agreement in writing of the parties, it was duly agreed that said lease should be continued in force upon the same terms and conditions, up to February 1st, 1879. Defendant’s intestate entered upon said premises at 'or about the date of the original lease and continued as. tenant thereof until on or about February, 1879.
    This action was not commenced until the 18th day of June, 1881, and plaintiff’s claim is that the lessee did not quit and surrender the premises in as good condition as reasonable use and wear thereof permitted, damage by the elements excepted, and did not restore the premises to the condition in which they were at the date of the said agreement, on the first day of February, 1874; but in various material particulars whs guilty of a breach of the covenant to repair contained in the instrument, and above quoted.
    Goodrich, Deady & Platt, for resp’t; W S. Poor, for app’lt.
   Larremore, Ch. J.

It is evident that the crucial question to be settled at the beginning of the trial in this action was: What was the condition of the premises in question at the time of the original letting thereof to defendant’s intestate, on or about the first day of February, 1874? Plaintiff certainly could not claim that the lessee was bound to put them into any better condition than when he originally took them.

The lease required the defendant to restore the building to its original condition, and the determination of what. this original condition was, must be the essential test by which fco try any claim that the plaintiff may assert.

The referee has found that the building was materially damaged during Mr. Freeborn’s tenancy, and has reported in plain tiff’s favor for fvhat he estimates tobe the amount of such damage. In my opinion, the weight of evidence was strongly against such finding, and it is the duty of the court, even on appeal, to interfere with it and reverse the judgment.

The only evidence in the case tending to substantiate plaintiff’s claim is his own, and that is of the most general character. He testifies that when the lease was made to Freeborn “ the walls of the building were in perfect condition, and so was the floor; the windows and beams were also in perfect order.” The plaintiff does not pretend to be an expert builder, and the only aid which the court has in determining what he intended to convey by the phrase “perfect condition” is his own definition at folio forty-three.

“I mean by ‘perfect condition’the condition in which the building was left at the time of the failure of the bankrupt firm of Breck & Schemerhorn * * * . When this lease was made the premises were in the same condition as when left by Breck & Schemerhorn.”

The other witnesses called by plaintiff had never seen or examined the building, so far as the record shows, until long after the lease, to Mr. Freeborn was made, so that as above stated, the only testimony upon which plaintiff can rely as to the original condition of the building is his own bare assertion that the walls, floors, windows and beams were in perfect order.

To rebut this, a number of witnesses for the defendant testified directly that the premises were in substantially as good condition at the time of the surrender of the premises in 1879 as they were when the lease was made in 1874. They are corroborated by many facts, the truth of which the plaintiff would be obliged to concede. The premises had been occupied “ since somewhere about 1860 or 1865 ” continuously as a sugar refinery. When Mr. Freeborn took the lease in 1874, it was after a previous firm of sugar refiners had failed, and he continued such business, and, as it seems though it is not expressly stated, acquired the machinery and fixtures already in the building which had been used by such insolvent firm. It appears^ by the testimony of both plaintiff’s and defendant’s witnesses, that the general condition of the floors throughout the building at the termination of Mr. Freeborn’s tenancy was rotten. One of plaintiff’s expert witnesses testifies as follows:

“ The floors were in bad condition and a great many of the beams were in bad condition which made it necessary to take them out, especially in the South street side; some of the beams were rotten and some not quite strong enough; that is they should have been taken out and replaced by new ones; that is I mean they were saturated by this stuff that comes out of barrels, and water soaked.”

Damages occasioned by the rottening of floors are certainly not to be included among those on account of which a landlord may claim under the tenant’s covenant to repair. Rotting is usually the work of time, and if in the present instance it was superinduced by “this stuff”—being the overflow or drippings from the tanks and receptacles used in sugar refining—the presumption is, if there be any presumption about the matter in default of direct evidence, that more of such deterioration by rotting took place during the fourteen years of use as a sugar refinery from 1860 to 1874, than during the five years continuation of such use by Mr. Freeborn from 1874 to 1879.

In regard to certain openings and holes in the floors, made necessary for the insertion of machinery and the passage of belts, there can be no doubt that many, if not afl of the same existed at the time of the making of this lease. Defendant’s witnesses who were acquainted with the building in 1874, are unanimous in this point; and the plaintiff himself admits it. Many of the implements of machinery were necessarily set into the floor and screwed down and fastened there, and their removal would, in the nature of things, leave certain marks and defacements.

There are other points that might be cited which additionally corroborate defendant’s contention that the building was not in “ perfect condition ” in the absolute sense of that phrase, in 1874; and that it was then in very much the same state as when surrendered by defendant’s intestate at the expiration of his lease. But enough has been said to show that plaintiff’s bare, uncorroborated generalization as to the condition of the premises at the time of the original letting should have been disregarded because clearly against the weight of evidence.

It is also apparent that this fundamental error resulted in what would be a very serious practical injustice if this judgment were allowed to stand.

The plaintiff testified that after the defendant’s intestate left the premises he paid the sum of $913.47 for a carpenter’s bill to put the premises into good and tenantable condition. He repudiates the idea that any of this money was expended in permanent alterations, and in converting the building from a sugar refinery into a warehouse. But even on his own' theory that this sum covered merely the cost of putting the building into an ordinary, tenantable condition for general purposes, it is evident, that the defendant is charged with a large amount in excess of what could possibly be his just liability.

The referee allowed the carpenter’s bill in its entirety, but this covered the whole price for labor and materials necessitated by the rotting of the floors and beams, and by the cutting up and defacement of floors on account of the insertion therein and attachment thereto of machinery and utensils of the refinery, which had been made long before Mr. Freeborn ever saw the premises. The effect of it would be to compel defendant to pay the whole cost of carpenter’s work required to restore the building to the condition it was in 1860 before it had ever been used as a sugar refinery. It is true that the carpenter himself testifies that this bill of his covered only the repairs made necessary by the damage to the building occurring during Mr. Freeborn’s tenancy. This, besides being as general in its character as plaintiff’s own testimony, is necessarily pure inference. I cannot see that such testimony has any other effect than to show bias • on the part of the witness. He was not acquainted with the condition of the building at the time of the making of the lease in 1814; and therefore any opinion upon that "subject which he expresses, is founded on mere hearsay. As above shown, the entire carpenter's bill paid by the plaintiff, has been allowed by the referee without any deduction, and there is no evidence in the case which would enable us, even if we were so disposed, to reduce the judgment. Ho facts are given tending to show how much of the damage to the flooors and beams is attributable to the rotting thereof before Mr. Freeborn’s tenancy began and the defacements of the building by reason of its original fitting up as a sugar refinery: and how much of such damage can be properly held to have been occasioned during Mr. Freeborn’s tenancy.

This error, which is embodied in the seventh finding of fact of the referee’s report is in itself sufficient to necessitate a new trial. But on such trial it is to be desired that in addition to requiring succinct and specific evidence of the state of the floors and beams at the beginning qf Freeborn’s tenancy, similar evidence be insisted upon as to the condition of the walls at the same time. The only testimony on this point on the present trial was that qf the plaintiff himself, and consisted of the same vague and general státements which he gave in regard to the floors. At least two of the defendant’s witnesses testified that the east wall of the building was, in 1814, warped, out of plumb and in a dangerous condition. Plaintiff’s witnesses testified that in 1819, at the termination of this lease, the building was in such a condition that they were afraid it would be condemned if brought to the notice of the inspector of buildings. There is nothing in the case to show that this dangerous condition of the east wall had been produced since the commencement of Freeborn’s tenancy except the statements of the plaintiff above alluded to.

In my judgment, the weight of evidence on this point is almost as clearly against plaintiff’s contention as on the other in regard to the floors and beams.

The judgment should be revesred and a new trial ordered with costs to abide the event.

Allen and Bookstaver, JJ., concur.  