
    Frederick H. Myers, Appellant, v. Charles Hussenbuth, Respondent.
    Appeal from a judgment of the Municipal Court of the city of New York, eleventh district, borough of Manhattan, in favor of the defendant.
    A. W. Birkins, for appellant.
    Salter & Steinkamp, for respondent.
   Per Curiam.

There is an implied covenant in every hiring that the tenant will surrender the premises at the end of the term in as good condition as they were in at the commencement of the term, reasonable wear and tear and damages by the elements excepted. This obligation is not confined to cases of ordinary and gradual decay, but extends to accidental injuries. Hawkins v. Ringler, 47 Hun, 264; Cohn v. Hill, 9 Misc. Rep. 327; Kling v. Dress, 28 N. Y. Super. Ct. 525. It is true that in the cases above cited the lease was in writing and contained an express covenant on the part of the defendant to surrender the premises at the termination of the lease in as good condition as when leased, reasonable wear and tear excepted, and also to make all necessary repairs during the term, but an implied covenant is of as much binding force and effect as an express covenant.

This action is, in effect, an action for waste. In such actions it is well settled that the defendant is liable for waste, although the waste was not committed by him, but by strangers or other persons over whom he had no control. Regan v. Luthy, 16 Daly, 413; 28 Am. & Eng. Ency. of Law, 888.

Judgment is reversed and new trial ordered in the Municipal Court, borough of Manhattan, eleventh judicial district, with costs to the appellant to abide the event.

Present: Truax, P. J., and Dugro, J.

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