
    CHARLES H. SMITH, Plaintiff and Appellant, v. TIMOTHY J. COE, Defendant and Respondent.
    A covenant by a sub-tenant to repair is not a mere covenant of indemnity, but renders him liable to his lessor, whether the latter has paid the original landlord or not.
    Before Barbour, C.J., Fithian and Freedman, JJ.
    
      [Decided June 11, 1869.]
    This case was tided before Mr. Justice McCunn and a jury. The action was brought to recover liquidated damages for breach of covenants by defendant, contained in a lease by plaintiff to him of premises Nos. 604, 606, and 608 Broadway. The lease contained a covenant to keep the premises in good repair, and to surrender them at the end of lease in the same condition as at commencement, and also a covenant that the defendant would “ not at any time before June 1,1867, negotiate for, or accept or be interested in, any lease of said premises or any part thereof,” except from the plaintiff or his assigns, or by his consent in writing, under the forfeiture of $10,000, as liquidated damages, and not as a penalty in addition to any other remedy.
    After the plaintiff had rested his case, the defendant moved for a nonsuit, when plaintiff requested the Court "to submit to the jury the following question, among others: “ Whether the defendant had not broken his covenant as to repairs ?” The Court refused to submit the question, and plaintiff excepted.
    The Court then granted the motion for nonsuit, and plaintiff excepted.
    A motion was made for a new trial, which was denied.
    The plaintiff appealed from the order denying a new trial, and also from the judgment entered on the nonsuit.
    
      Mr. Joshua M. Van Cott for appellant.
    The evidence as to insufficient repairs, uncontradicted, was sufficient, and the question whether defendant had not broken his covenant as to repairs should have been submitted to the jury.
    
      Mr. John M. Martin for respondent.
    The evidence shows that the building was in as good repair, taken altogether, in May, 1867, as when former lessee took it. This was all that defendant was required to do under his covenant (Taylor Land. & Ten., sec. 407).
   By the Court:

Barbour, C.J.

The complaint in this case sets up facts sufficient to have entitled the plaintiff to a recovery upon his claim of damages, because of the failure of the defendant to return the premises in as good order as when received, if he succeeded in proving such facts upon the trial; and, upon a careful examination of the testimony, I am satisfied that the jury would have been justified in finding a verdict for the plaintiff upon that claim, had the evidence been submitted to them. The covenant of the defendant requires him to leave the premises on the 1st of May, 1867, in as good condition and repair as they were in on the 18th of February, 1862, as well as to keep them' in good repair during the term; and I think there was enough evidence -before the jury, if credited by them, to authorize a finding that some sixty doors, and other portions of the premises, were not in as good repair and condition when left, at the end of the term, as they were in on the 18th of February, 1867.

Assuming, then, that the jury would so have found, had the matter been submitted to them, the plaintiff would have been entitled to recover the amount, measured in money, of the injury sustained by the premises, because of the failure of the defendant to repair. For his covenant to repair is not a mere covenant of indemnity, but it renders him liable to his lessor, in case of nonperformance, whether the latter has paid the original landlord or not (Jackson v. Post, 17 Johns., 479). I am, therefore, of opinion that the lealned justice erred in directing a verdict for the defendant; and having arrived at this conclusion, I see no necessity for considering the further questions raised upon the argument by the counsel for the appellant.

The judgment and order denying a new trial should be reversed, with costs to abide the event, and a new trial directed.  