
    Schwegler Realty Company, Appellant, v. Audubon National Bank, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Landlord and tenant — covenants—surrender in good condition — removal of fixtures.
    Where a tenant covenants to take good care of the premises, make no alterations without the written consent of his landlord, and at the expiration of the term deliver the premises in good condition, he is bound to surrender them in as good condition as they were at the commencement of the term, even though the landlord consented to the making of certain alterations.
    Where it appears that the premises were returned with walls and' ceilings broken, window boxes and radiators removed, heavy bars over the windows and window ledges broken, natural finish quartered-oak trim partly covered with red stain, a large window glass broken and the floor replaced, by an irregular shaped tile floor, there is a breach of the covenant to surrender the premises in good condition.
    
      Where a tenant removes domestic or trade fixtures, he must do so with as little injury as possible, and where the injury done is more than insignificant he must repair and restore the premises to their original condition.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the defendant after a trial without a jury.
    Joseph Day Lee, for appellant.
    Peter Condon (Augustus L. Richards, of counsel), for respondent.
   Cohalax, J.

This is an action to recover damages for the alleged failure of the defendant to surrender certain leased premises in good condition. The premises, under a written agreement, were leased in 1909 for two years, and they were to be used as a banking office. In June, 1911, a second lease was made, extending the term for two years and three months from the 1st day of October, 1911. In both leases there is contained the following covenant: ‘1 That the Tenant shall take good care of the premises and that no alterations are to be made on same without the written consent of the party of the first part and at the end or other expiration of the term shall deliver up the demised premises in good order or condition, damages by the elements excepted.”

It is upon the breach of this covenant that the action is based. The court below found that the lessor had consented to the making of the alterations and the installation of certain fixtures, and thereupon decided that under neither lease was the plaintiff entitled to recover damages on the surrender of the premises. But even though permission was given to the defendant to make the changes in the beginning, nevertheless the defendant was bound to surrender the premises in as good condition as they were at the commencement of the term. Scott v. Haverstraw Clay & Brick Co., 135 N. Y. 141; Lazarus v. Ludwig, 45 App. Div. 486; Mc-Gregor v. Board of Education, 107 N. Y. 511. There was evidence in the case that the premises were returned with walls and ceilings broken, with window boxes and radiators removed, with heavy bars over the windows and window ledges broken, with natural finish quartered oak trim partly covered with red stain, with a large window glass broken and with the floor replaced by an irregular shaped tile floor. Defendant contends by the making of the second lease the landlord waived any breach of the covenant to surrender the premises in good order or condition, as provided for in the first lease; that its obligation at the end of the second lease was to surrender the premises in the same condition that they were in at the beginning of the second term, less the fixtures. Whatever the. tenant’s right was with respect to the removal of the fixtures during the first lease, it is plain that although it agreed in the second lease not to make any alterations in the premises, and to return them in good condition, it breached both of these covenants. It cannot be said that the taking out of the fixtures, partitions, paneling and other changes was not an alteration, and the damaged condition of the premises indicates that they were not surrendered in good condition. It follows, that so far as the second lease is considered, under the circumstances of this case, the plaintiff was not precluded from a recovery. In all cases where the defendant removes domestic or trade fixtures, he must do so with as little injury as possible, and where the injury done is more than insignificant, he must repair and restore the premises to their original condition. Underhill v. Landl. & Ten., 1257.

The judgment is reversed, new trial ordered, costs to the appellant to abide the event.

Seabury and Bijue, J. J., concur.

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