
    Francis J. Markham, Appellant, v. David Stevenson Brewing Company, Respondent.
    
      Landlord and tenant — duty of a tenant to make repairs in the demised pn'emises required by the building department of New York city.
    
    A lease of certain premises contained a covenant on the part of the lessee “to make all and every repair of every description whatsoever, both inside and ■ outside of the .house and about the demised premises, and to the roof of the said buildings at his own proper cost and expense; ” also at the expiration of the term to “ quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted,” and “to comply with all the regulations and orders of the Health, Police and Fire Departments, and also all the Municipal Departments of said City.”
    During the- term it was found that a portion of the foundation of the demised building was defective; that a gable wall bulged; that the first tier of beams and a part of the partitions were rotten and that the-building was unsafe. The building department of the city in which the demised premises were located having given notice requiring the premises to be put in safe condition' and the lessee having refused to obey such direction, the lessor entered upon, the premises and repaired the building.
    
      Held, that under the covenants of the lease the lessee became obligated to reimburse the lessor for the expense incurred by the latter in making the premises safe;
    That the notice from the building department stating, “"You are therefore required to make same (the demised building) safe,” constituted “an order’» within the meaning of the covenant of the lease requiring the lessee “to comply with all the regulations and orders of the Health, Police and Fire Departments and also all the Municipal Departments of said City.”
    O’Brien, J., dissented.
    
      Appeal by the plaintiff, Francis J. Markham, from a judgment of the Supreme Court in favor of the defendant, entered in thé office of the clerk of the county of New York on the 3d day of November, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also' from an order entered in said clerk’s office on the 29 th day of October, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      John H. Corwin, for the appellant.
    
      Gratz Nathan, for the respondent.
   Hatch, J.:

This action was brought to recover damages for the alleged breach of certain covenants contained in a lease of premises situate on the northeasterly corner of Tenth avenue and Twenty-eighth street in the borough of Manhattan, city of New York. The claimed breach consists in a failure to make repairs as required by the covenants. It was disclosed by the evidence that the buildings had become very much out of repair and that the building department had notified the parties that the premises had become unsafe and dangerous, specifying the particulars, and requiring that they be made safe and secure in manner as specified. The tenant having refused to make compliance with the notice or with the covenants contained in the lease, the plaintiff entered upon the premises,, made the repairs, and now seeks by. this action to recover the cost thereof. When the plaintiff entered upon the premises for the purpose of making the repairs the defendant abandoned the same and thereafter refused to pay rent. The plaintiff thereupon brought a reaction to recover the rent claimed to be due by the provisions of the lease. The defendant interposed an answer in that action, claiming that the plaintiff had evicted the defendant from the premises and had also accepted a surrender of the same; by reason of which facts the defendant x claimed to be discharged from the payment of the rent. The plaintiff recovered a judgment against the defendant for the rent due, and from that judgment an appeal was taken to this court, where the same was affirmed. Therein it was held that the defendant was bound to make. the repairs required to be made by the building ' department, pursuant to the covenants contained in the lease, and that, the ■ defendant’ having, refused to make the repairs and the plaintiff being required to restore the buildings by mandatory provisions of law, the entry for that ■ purpose did not work an. eviction, • and that the attempt to rent the premises to other parties did not constitute an acceptance of a surrender of the term. (Markham v. Stevenson Brewing Co., 51 App. Div. 463.) Upon appeal to the Court of Appeals this judgment was affirmed. (169 N. Y. 593.)

This, determination established . that the ■ conventional relation of landlord and tenant continued to exist ;■ and it also' established that the repairs required to be made by the defendant pursuant to the covenants contained in the lease constituted an obligation Upon the part of the defendant, and that its failure to make compliance with the covenants in this respect was a breach of the same which justified the entry by the plaintiff upon the premises and the making of the repairs. It is somewhat difficult tb see why this, adjudication is not res adgudÁcata of the defendant’s liability to pay for the cost ’ of the repairs. It necessarily established, that the covenants contained in. the. lease imposed that obligation ..upon the defendant, and it also, determined that the entry of the plaintiff for the purpose of making the repairs—tlie defendant having refused compliance with the .covenants was not- an eviction, of the defendant and that it was not by reason of such act absolved from payment of the rent.The judgment, therefore, seems to have established that the cove- ' nants required the defendant to make the- repairs, .and that it 1 remained a continuing obligation of the defendant. This seems to ' be a binding adjudication, fixing the liability of the defendant to pay the cost of the repairs.

’ . Assuming, however, that the judgment for rent is not res 'adgitr dicata of the present question, nevertheless, we think -the liability is imposed upon the defendant by the fair construction of the covenants contained in the lease. -These covenants read.: “ And at the expiration of the said term, the said, party of the second part (defendant) Will qhit and surrender, the premises hereby demised, in as good state and condition as reasonable use and Wear thereof .•will permit, damages by the elements excepted.

“ And the said party of the second part further agrees to comply with all the regulations and orders of the Health, Police and Fire Departments, and also all the Municipal Departments of said City.”

The construction placed upon a similar covenant, not, however, so broad in its terms (by this court), imposed upon the defendant the obligation not only to keep the premises in as good repair as they were when he1 entered, but, if out of repair, to restore them to a good condition, having regard to the age and class of the buildings, and to keep them in repair during the continuance of the term and to leave them in such repair at the close thereof. (Lehmaier v. Jones, 100 App. Div. 495.) The covenant in that case simply provided that the tenant should keep the premises in good repair at his own expense during the term and comply with all the orders of the public authorities of the city of New York iu relation to said premises, at his expense, during the term of the lease, and at the expiration of the term that he quit and surrender the premises in__^ as good state and condition as reasonable use and wear- thereof would permit. The language of the present covenant requires that the tenant make repairs of every description whatsoever, both in and outside of the house and to the roof of the buildings and also to comply with all the regulations of the municipal departments of the city of New York. The express language,, therefore, imposed -upon the defendant the obligation of making all repairs, and also required compliance upon its part with the regulations and requirements of the public departments.

It is probably true that these covenants did not impose upon the defendant an obligation to restore the buildings in the event of their destruction by any act for which the tenant was not responsible. The covenants can operate to the extent of imposing the obligation to repair, and still leave the defendant entitled to the benefit of the provisions of chapter 345 of the Laws of 1860, now contained' in section 197 of chapter 547 of the Laws of 1896 known as the Real Property Law. If there was a destruction of the buildings for any cause upon which the statute could operate it would apply, and this for the reason that such destruction would not be within the terms, of the covenant imposing the obligation upon the tenant of restoration of the buildings. But here the buildings were not destroyed; they were only out of repair, and, 'therefore, the defendant was obligated during the whole period to pay the rent secured to -be paid by the. lease, and also to make the repairs under the terms: of the covenant, and as required by the building department of the city of New York.

It is claimed,, however,-that the ease of May v. Gillis (169 N. Y. 330) is opposed to this view. Therein a portion of the building occupied by the tenant was destroyed by the elements, r The-tenant abandoned the premises, and in ani’action for rent the tenant claimed to be entitled to the benefit of the statute. The trial court held otherwise and directed a verdict in favor" of the plaintiffs1. The ■covenant- in that case was quité general,, its' language being: All inside and outside repairs to be made by the party of the second part (the defendant), and that 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, damages by the elements excepted.” The 'Court of Appeals- held that the covenant -did not impose an obligation to restore that part of the building which was destroyedthat if a rule establishing such liability were adopted its effect would be to compel the tenant to replace" the destroyed building ; that such construction would render the obligation more onerous than the language warranted,, and such result, therefore, was not within the contemplation of the.parties when they made the covenant. The ■evidence in that case, however, tended to show that there was only a destruction of a part of the building, and some portion of it still remained tenantable, and the court held that if such facts appeared the tenant would still remain liable for a proportionate part of the' rent) that this was a question of fact and should have been submitted to the- jury, but that as to the destroyed portioii of the building no obligation was -imposed to restore it". The' judgment ■directed by the trial court was, therefore, reversed and a new trial granted. That case is, therefore, not an authority relieving the defendant-from obligation pursuant- to the terms of this covenant, but, on the contrary, is in harmony with the view that, as there was no: destruction of the "buildings upon which the statute would operate, .the obligation to repair and "pay the rent remained:

It also appeared in the present casé that the building department, prior to" the making of the repairs by the plaintiff, served a notice upon the owner and upon the executors of the tenant to make specific repairs therein mentioned. Among other things this notice stated, after reciting the dangerous condition of the premises: “You are therefore required to make same safe.” It is insisted by the respondent that this notice is not within the terms of the covenant for the reason that it is not an order. Upon the appeal in the action for rent this court said that the entry of the plaintiff to make the repairs “was in compliance with the order of the building department,” and such seems to be the fair construction of the language of the covenant. By the provisions of section 509 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1887, chap. 566) authority was conferred upon the superintendent of buildings to serve written or printed notice upon the owner, agent, lessee or other person having an interest in a building that had become unsafe, “ requiring ” that it be made safe and secure or removedlas might be deemed necessary by the said superintendent. By chapter 275 of the Laws of 1892 these provisions were made enforcible by the department of buildings, and, since the notice herein was given, have been, pursuant to the Greater New York charter (Laws of 1897, chap. 378, § 647, as revised by Laws of 1901, chap. 466, § 407), carried into the Building Code (§ 153). The effect of these provisions is to make the notice an order to do the things therein specified. It is required to be done, and this is equivalent to an order to do the thing so required. It is evident that the parties contemplated the action of the department, and not an order of the court, for such is the language of the covenant. The enforcement of the requirement by the building department is not vested in it but in the court. This, however, is quite aside from the things which the department may require or order .to be done. The law furnishes a method of procedure and vests authority in the court to act upon the requirement of the building department, and when the'steps are taken which establish that the requirement of the department are proper, the court then issues its order. That, however, is not the order of the building department, but is a court order authorized by statute and granted in the exercise of judicial functions. The fact that the court may make an order does not nullify or affect the requirement of the building department, save as it enforces the same, nor does the requirement of such department cease to be an order to the -persons charged with the duty of obeying it.

The facts are undisputed; and whether it be held that the .action for rent fastens a binding liability upon the defendant or not, -stick obligation seems to be within the fair construction of the covenant and fastens with equally binding force a liability upon the defendant to pay the fair cost of making the repairs.

It follows, therefore, that the judgment and order appealed from , should, be reversed and a new trial granted, with costs to the appellant to abide the event. '

i Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; O’Brien, J., dissented.

O’Brien, J. (dissenting):

I agree with the appellant that the judgment in the former action i for rent is not a bar to this action, but that does not help-hirn.

By the covenants the defendant agreed “ to comply with all the regulations and orders of the Health, Police and Fire Departments, and also all the Municipal. Departments of'said City.” It also Contained a covenant “'to make all and every repair- .of every description whatsoever, both inside and outside of the- houses and ’ about the demised premises, and to the roof of the said buildings at his own proper' costs and' expense.” And at the expiration of the said, term to “ surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.” ,

In- October, 1896, a portion of the foundation of the. building was defective, the southern gable Wall-was bulged, the first tier of beams and a part of the- partitions were rotten, and the building.was unsafe. A notice was served by the building department upon the plaintiff to that effect, and informing him. that unless he made the building . safe the building department would take it-tin hand. Thereupon the plaintiff called upon the defendant to make the repairs, which the defendant refused to do, upon the ground that they were extraordinary repairs, not called for- by the terms of tits lease. Thereupon the plaintiff made the repairs at an, expense of about $3,000, and this sum he now seeks to recover. At the close of the trial the court dismissed the complaint. .

I think this was right under the authority of May v. Gillis (169 N. Y. 330), where the lease contained a covenant, all insi'de and outside repairs to be made ” by the tenant, and it was there held that this only included ordinary repairs, and did not obligate the tenant to undertake a reconstruction of the building.

It will be noticed, therefore, that the question turns upon whether the repairs which the plaintiff seeks to compel the defendant to make were ordinary or extraordinary repairs; and as, considering their nature and extent, I think the latter, I dissent from the conclusion reached by the majority of the court, and think the case was properly disposed of in the trial court, and that the judgment appealed from should be affirmed, with costs.

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