
    Lawrence O’Connor, Resp’t, v. Andreas H. Goureaud. Appl’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 6, 1886.)
    
    1. Landlord and tenant—Covenant to repair—Damages recover-
    able ON BREACH OF.
    In a lease made by the plaintiff he agreed to make all necessary repairs to the building leased. In an action for rent the defendant set up a counter-claim for damages to goods arising from a neglect on plaintiff’s part to perform his covenant. From the evidence it appeared that at defendant’s request plaintiff made repairs as to the manner of which no objection was made; some time subsequent a leak was discovered in the roof at a place to which defendant claimed to have called plaintiffs’ attention. Held, that there was no breach of covenant; under t..e covenant the damages for its breach must be those contemplated or reasonably supposed to be contemplated, by the parties at the time of the contract.
    2. Safe—Tenant must exercise diligence.
    A tenant cannot neglect reasonable efforts to protect himself and his landlord from injury and loss, nor can he reap any advantage from his own negligence.
    
      E. Goldschmidt, for resp’t; Henry W. Sackett, for appl’t.
   Larremore, Ch. J.

This action was brought upon a written lease to recover a balance "of rent, which was admitted to have been unpaid. Plaintiff’s claim was resisted upon the ground that in the lease executed by him he had agreed to make all necessary repairs to the building; that he had failed to perform his covenant in this respect, and negligently allowed the roof of the building demised to become insecure and leaky, in consequence of which the rain flowed through it and damaged the defendant’s goods, as he alleged, to the extent of eighty-four dollars, which last named amount he counter-claimed against the rent.

It appears from the testimony that the plaintiff was requested to repair» the premises, which he did. No complaint or objection was made by defendant as to the manner in which the repairs were made. Some five months after the repairs had been made a severe rain storm occurred, following a prolonged frost. A leak in the roof was then discovered, at a place to which defendant claims he called the plaintiff’s attention.

I do not find from the testimony that the plaintiff failed or refused to perform his covenant. He sent a mechanic to make repairs upon each occasion where he was notified. He even insisted upon a guarantee from the roofer that the roof was good for two years.

The court in the first instance directed a verdict for plaintiff, subject to its farther opinion, under the provision of section 1185 of the Code of Civil Procedure, and subsequently set aside the verdict and directed judgment for the defendant

This judgment was reversed by the general term of the city court, and from its order this appeal is taken.

Under the covenant in the lease in question, the authorities seem to agree that damages for its breach must be those which were contemplated or may be reasonably supposed to have entered into the contemplation of the parties at the time of the contract. If the landlord fails to repair agreeably to his covenant, the tenant may make the repairs at the landlord’s expense, and charge him with the diminished value of the premises in consequence of the want of it. Myers v. Burns, 35 N. Y., 269; Cook v. Soule, 56 id., 420.

The learned counsel for the appellant claimed that because the rain came in and damaged his goods, he was entitled to recover the amount of his loss from the landlord, without regard to what it would have cost to make the repairs.

As was stated in the opinion of the general term by McAd am, Oh. J.: “If the'repairs, i. e., stopping a leak, might have been made at the cost of one dollar, the tenant may leave it undone, and charge the landlord whatever damage the rain may in consequence do to his goods, without limit to the amount.”

A tenant cannot neglect reasonable efforts to protect himself and his landlord from injury and loss, nor can he reap any advantage from his own negligence.

It is not claimed on the part of the defence that the repairs were negligently made by the landlord, but that he failed and neglected to perform his covenant. This distinguishes the case at bar from Walker v. Swayzee (3 Abb. Pr., 138) where the defendant undertook to make repairs, which were done in an insufficient and improper manner, and where damages were allowed on the ground of negligence on the part of the landlord. o

The judgment appealed from should be affirmed, with costs.

Van Hoesen and Daly, JJ., concur.  