
    Florence Guernsey, Respondent, v. The Butterick Publishing Company, Ltd., Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1914.)
    Landlord and tenant — requisition of lease — premises in physical possession of subtenant — lease — burden of proof.
    Where a landlord was required. by the lease to repair, as speedily as possible, any partial damage to the premises by fire or otherwise, and in case the damages were so extensive as to render the premises untenantable the rent was to cease until complete repairs were made, provided, however, that such damages and destruction were not caused by the carelessness or negligence of the tenant, his agents or servants, the landlord, in an action for rent after a fire, has the burden of establishing negligence on the part of the tenant, and in the absence of such proof it is error to submit such issue to the jury.
    Where, at the time of the fire, the premises were in the physical possession of a subtenant, and the landlord took possession notifying the tenant that it did so for the purpose of making complete repairs, and retained the premises for two months and five days, the lease having from the time of the fire four months and five days to run, and the tenant refused to accept a tender of the premises, the burden is on the landlord .to show that he made the repairs as speedily as possible.
    Appeal by the defendant from a judgment of the City Court of the city of New York in favor of plaintiff for $1,622.64, entered upon the verdict of a jury.
    James B. Sheehan, for appellant.
    Gordon & Rogers (Clarence De Witt Rogers, of counsel),, for respondent.
   Guy, J.

The defendant appeals from a judgment in favor of plaintiff entered upon the verdict of a jury in an action for rent claimed to be due under the terms of a written lease entered into between plaintiff and defendant on May 25, 1905, whereby plaintiff let to defendant certain premises for the term of five years, to commence May 1,1908, and expire April 30,1913.

The complaint alleges the making of a lease ‘ ‘ at the annual rent or sum of $16,000 to be paid in equal monthly payments in advance on the first day of each and every month during said term;’.’ that defendant duly entered into possession of the said premises under said lease, and that no part of the rent which became payable under the terms of said lease on the 1st day of March, 1913, amounting to $1,333.33, had been paid.

The answer denies that ‘ the plaintiff rented and the defendant hired the premises described therein at the annual rent or sum of $16,000 to be paid in equal monthly installments in advance on the first day of each and every month during said term; denies that it was or remained in possession on the first day of March, 1913, or at any time thereafter; and denies that the sum of $1,333.33 became payable under the terms of said lease on the first day of March, 1913,” and for a separate defense alleges the making of an agreement, annexed to the answer, which provided as follows: That in case the building or buildings erected on these premises hereby leased shall be partially damaged by fire or otherwise the same shall be repaired as speedily as possible at the expense of the said party of the first part (the landlord); that in case the damages shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair * * * provided, however, that such damage and destruction be not caused by the carelessness, negligence or improper conduct of the party of the second part, its agents or servants; ” and, further, that on or about the 26th day of December, 1912, the premises were damaged by fire, by water and through the acts of the members of the fire department of the city of New York; that said damage was not caused by the carelessness, neglect or improper conduct of the defendant or of its agents or servants; that the said damage was so extensive as to render the said building and premises untenantable; that thereupon the plaintiff took possession of said premises for the purpose of repairing the damage caused as aforesaid; that the plaintiff thereupon proceeded to repair portions of the damage and has ever since remained in possession of said premises; that the plaintiff had not by or before the 1st day of March, 1913, and has not at any time thereafter, put the building in complete repair or in a tenantable condition; but that, on the contrary, the said premises were on the 1st day of March, 1913, and have ever since remained in a wholly untenantable and dangerous condition.

The evidence shows that at the time of the fire the defendant was not in physical possession of the premises, but that it was in possession of a sub-tenant, to whom the defendant had rented the premises. The plaintiff took possession of the premises on December 28, 1912, notifying defendant that it did so for the purpose of placing them in complete repair. At the time of the fire the lease had four months and five days to run. The plaintiff finally tendered the premises to defendant as being in complete repair on February 28, 1913. The defendant rejected the tender on the ground that the premises had not been put in complete repair, and on the trial contended that, in retaining the building for two months and five days for the making of repairs, the plaintiff had failed to comply with its covenant to make such repair “ as speedily as possible.”

On the trial the plaintiff offered in evidence the lease annexed to defendant’s answer, and rested. Defendant moved to dismiss on the ground that plaintiff had failed to show the condition precedent to the recovery of rent, that the premises had been restored and put in complete repair. This motion was denied and an exception taken.

Defendant also excepted to that portion of the charge to the jury where the court said: “In your deliberations the first thing you must do when you reach the jury room is to determine whether the defendant or its sub-agents were guilty of negligence or carelessness or improper conduct in connection with the fire.” Under the.lease the burden of establishing such negligence was upon the landlord, and, in the absence of proof of negligence on the part of the defendant, its agents or servants, the court erred in submitting this issue to the jury. “ Negligence, being a wrong, will not be presumed, but must be proved by the party charging it.” Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y. 271 ; Burke v. Erie R. R. Co., 134 App. Div. 413 ; Platt v. Richmond, York River & C. R. Co., 108 N. Y. 362. The learned court also erred in refusing to charge the several requests presented by defendant’s counsel on this point. The defendant was also entitled to have the following specific requests charged as presented:

“ Twelfth. That the burden is cast by law upon the plaintiff to prove by a reasonable preponderance of evidence that the premises were put in complete repair and were in complete repair on the 1st day of March, 1913 (the date when they were tendered to defendant), and if the jury find that the premises had not been put in complete repair by March 1, 1913, the verdict must be for the defendant. -
“ Thirteenth'. That the burden is cast by law upon the plaintiff to prove that the repairs, if completed, were made as speedily as possible; that it appears by the uncontradicted testimony of the witnesses on behalf of the plaintiff that the fire occurred on December 26, 1912, and that the work of repairing was not commenced until January 10, 1913, some fifteen days thereafter, and that if in the judgment of the jury fifteen days was an unreasonable delay, the plaintiff failed to perform the provisions of the lease and the verdict must be for the defendant.” See Bacon v. Albany Perf. Wrapping Paper Co., 22 Misc. Rep. 592.

The refusal to charge each of these requests constituted prejudicial error.

The evidence establishes clearly that plaintiff did. not, as required by the provisions of the lease, put the building either in complete repair or even in substantially the same condition as before the fire, and that after the suspension of the rent by reason of the fire putting the building in untenantable condition no obligation to pay rent has been established under the provisions-of the lease.

The judgment must, therefore, be reversed, with costs, and the complaint dismissed, with costs.

Page and Whitaker, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.  