
    Andrew Crawford, Appellant, v. Henry Redding, Respondent.
    (New York Common Pleas—General Term,
    May, 1894.)
    The fact that the roof of the premises leaks, and that the walls are damp, does not constitute an eviction where there is a covenant in the lease by the tenant to keep the premises in repair, and the dilapidations are caused by gradual decay and not by any sudden disaster.
    Appeal from a judgment of the District Court, in the city of New York for the first judicial district.
    Action against the surety on a lease to recover rent on default of the tenant. The lease was for the term of three years from the 1st of May, 1892, and contained a covenant on the part of the tenant to keep the premises in repair. The tenant moved out in the latter part of May, claiming that the roof leaked and the side walls and ceiling became damp. The defense in the action was eviction arising out of the condition of the premises. The justice dismissed the complaint and rendered judgment in favor of the defendant, from which this appeal was taken.
    
      Howe <& Hummel, for appellant.
    
      JB. W. Tra/itel, for respondent.
   Per Curiam.

There is no implied warranty in the lease under consideration that the premises were fit for the purposes for which they were rented, while there is an express covenant on the part of the tenant that he will keep the premises in repair. The case is barren of any proof that the premises became untenantable by reason of any sudden disaster of any kind, but the testimony rather tends to show that they became dilapidated by gradual decay, which was one of the things the tenant undertook to guard against by his covenant in the lease.

The judgment is, therefore, clearly erroneous, and it must be reversed, with costs to the appellant.

Present: Bookstaver, Bischoff and Pryor, JJ.

Judgment reversed, with costs.  