
    Louis Fleischmann, Resp’t, v. Lippman Toplitz, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 1, 1892.)
    
    1. Landlord and tenant—Expense op removing, debris after fire— Termination of lease by fire.
    A stable occupied by plaintiff was destroyed by fire, which also consumed' a number of his horses. By the lease he was required to surrender the premises in good order and repair, etc., and also, at his own expense, to comply with the rules, orders and regulations of the department of buildings and board of health. Notice having been given to defendant to remove the debris, he sent the notice to plaintiff and called his attention to the clause referred to, and said,in a letter, “If it will be decided that I have to pay for it, I will do so cheerfully.” Plaintiff procured the work to be done, completing it August 1, to which time he had paid the rent, his only occupation of the premises after the fire being for the purpose of removing the dead horses and making salvage. On August 9th he notified defendant that the watchman had been withdrawn. In an action for the money expended by plaintiff, Held, that the few days that plaintiff spent, in removing the dead bodies of the horses and his own damaged property did not mislead the defendant; that the latter accepted the surrender, and the court could not, under the circumstances, hold as a matter of law that plaintiff had elected to continue his tenancy, or had in fact continued it.
    2. Same—Laws 1860, chap. 345.
    The lease being terminated by the statute, the plaintiff was not, apart, from the terms of his lease, obliged to remove the dead bodies of the horses, and the damage to the real estate and the burden cast upon it by the fire-must be borne by the landlord and not by the tenant.
    3. Same—Evidence.
    After defendant had read from plaintiff’s letter of August 9th, the plaintiff was allowed to read from the same to the effect that the bill inclosed was for extra help hired pursuant to defendant’s directions. Held, admissible, as it was of a nature to elicit a reply from defendant, and none-was made.
    (Vann, J„ dissents.)
    Appeal by defendant from a judgment of the general term, first department, upon the verdict for the plaintiff directed by the-trial court, and upon the exceptions directed to be heard in the-first instance at the general term.
    The action was to recover for money expended by the plaintiff in removing the debris and carcasses of dead horses from premises-on West Thirtieth street, Mew York city, immediately after a fire which occurred July 25, 1877, and destroyed the stables upon the premises and caused the death of thirty-seven horses which were therein at the time. The defendant was the owner of the premises ; the plaintiff was his tenant under a written lease for the term of five years from Mov. J, 1872. The lease contained the clause-that the plaintiff “ at his own proper cost, charge and expense, will comply with all the rules, orders and requirements of the department of buildings of the city of Mew York, and the board of health of said city.” Immediately after the fire a notice was-served upon the defendant by the board of health requiring him to remove the debris. The defendant sent the notice to the plaintiff in á letter which, after referring to the order, proceeded: “ In my lease with you it is specially provided that you have to comply with the reauirements of the board of health. The work must be done at once, and I would therefore request you not to delay a moment. If it will be decided that I have to pay for it, I will do so cheerfully.”
    The plaintiff immediately procured the work to be done. It consisted of throwing aside and piling up the bricks and other debris, so as to uncover the dead horses, and then taking them away. The expense of the work upon the debris, necessary to be done to uncover the dead horses, and make ready for their removal, was $465.50, and the expense of removing them was $83.40. The work was completed July 31. Plaintiff had paid the rent up to August 1. He paid none afterwards, and his only occupation of the premises after the fire was for the purpose of removing the dead horses and making some salvage of damaged property belonging to him. The plaintiff, August 9th, sent to the defendant the bills for the expense of the work upon the debris, and for the removal of the" dead horses. This letter stated: “ Since all the property belonging to us that could be reached has been removed, our watchman has been withdrawn.”
    At the close of plaintiff’s testimony the defendant moved for a non-suit upon the ground that the plaintiff by the terms of the lease was bound to obey all the orders of the board of health and, therefore, to remove the dead horses and the debris incident to such removal, and apart from the lease was bound to do so. This motion was denied, and after some evidence on the part of the-defendant to the effect that the plaintiff, prior to the letter of August 9th, gave the defendant no notice of "his intention to quit the-premises, and that the only promise of the defendant was to pay if he should be liable, the defendant’s counsel moved for a non-suit upon the whole testimony, which was denied. The defendant’s counsel then asked to go to the jury, and requested the court to charge, that if the plaintiff did not notify the defendant prior to the 9th of August that he intended to surrender the premises, the lease did not terminate till then. The court denied defendant’s request to go to the jury. Defendant’s counsel renewed his request to go to the jury and asked the court to charge that if the plaintiff remained in possession of the premises after August 1st, he did not quit and surrender them to defendant within the meaning of chapter 345, Laws 1860, and that that being so, the defendant was entitled to a verdict. The court again refused; and the defendant then moved that the court direct a verdict in his favor. This motion was denied. The court, upon motion of plaintiff’s counsel, then directed a verdict in plaintiff’s favor for the whole amount claimed. The defendant’s counsel duly excepted to the several refusals and rulings.
    The general term held that the plaintiff ought to pay for the removal of the carcasses of his dead horses, and the defendant for the labor upon the other debris, and directed judgment accordingly.
    
      E. T. Brackett, for app’lt; A. J. Dittenhoefer, for resp’t.
    
      
       Affirming 32 St. Rep., 546.
    
   Landon, J.

—The defendant’s motions for a non-suit were properly denied. They were based upon the assumption, which we think was untenable as a matter of law, that the relation of landlord and tenant continued between the parties, after the destruction of the buildings by fire, until the plaintiff gave notice of his intention to surrender the leasehold premises, or at least until he did surrender them.

His requests to go to the jury were coupled with the same assumptions of law, and he thereupon asked the instruction that if the plaintiff did not give the notice of his intention to surrender the premises until the 9th of August, or remained in possession of the premises until that date, the plaintiff was not entitled to a verdict.

The facts in these respects were as assumed by the defendant, but we think the law was not.

The statute, chap. 345, Laws of 1860, dissolved the relation of landlord and tenant between the parties unless the plaintiff elected that it should continue. Smith v. Kerr, 108 N. Y., 31; 13 St. Rep., 115; Johnson v. Oppenheim, 55 N. Y., 280. The tenant’s election to continue the relation no doubt could be inferred from circumstances. The act, however, does not 'require the tenant to serve the landlord with notice that he intends to quit and surrender; it provides that upon the destruction of the building without fault of the tenant, the latter “ may thereupon quit and surrender possession of the leasehold premises.” If he does -this as soon as it is reasonable for him to do it under the circumstances, he does it soon enough. Here, the destruction of ■the buildings was complete. The plaintiff’s term as tenant would expire in less than four months. His rent was paid until August 1st. The defendant requested the plaintiff to execute the order of the board of health; in effect without prejudice to the question of liability. It was proper that the plaintiff should rescue such of his damaged property from the wreck as was worth the labor. The defendant did not ask from him any expression of his purpose respecting the continuance of his tenancy. It is inferable from the circumstances that the defendant regarded it impossible for the plaintiff to continue the tenancy. The few days that he spent in removing the dead bodies of the horses and his own damaged property did not mislead the defendant nor prejudice his interests. The defendant accepted the surrender. The court could not under these circumstances hold as a matter of law that the plaintiff had elected to continue his tenancy, or had in fact continued it. His occupation subsequent to the fire was not necessarily under the lease, but so far as it was necessary for the removal of the dead bodies of the horses it was. upon the request of the plaintiff; and for the remaining time, it might have been found to have been upon the implied request of the plaintiff for time sufficient to remove his own property, and if so, and if any liability was thereby incurred, it was for use and occupation. Austin v. Field, 7 Abb., N. S., 29. But the defendant did not request to submit to the jury the question whether plaintiff elected to continue under the lease, or failed to surrender the premises pursuant to the statute, but asked an instruction that the plaintiff could not recover because he did not notify the defendant until August 9th that he intended to surrender, and also because he remained in possession after July 31st and also up to August 9th, neither of which requests was tenable.

The defendant also moved for a nonsuit because, as he assumed, the plaintiff was bound to remove the dead bodies of the horses, not only under the terms of the lease which bound him to obey the orders of the board of health, but also apart from the terms of the lease as the owner of such dead bodies.

If the lease was terminated by the statute upon the destruction of the buildings, it is clear that the plaintiff, as tenant and as between himself and his landlord, was not bound by its terms to perform any act in respect to the premises which the fire made necessary to be performed. Such performance could not be made until after the relation of landlord and tenant had ceased. Mor would the tenant in such case, apart from the terms of the lease, be obliged to remove the dead bodies of the horses. The act of 1860, in case of a dissolution of the relation of landlord and tenant under-it, enables the tenant to quit and surrender the' premises, and discharges him from liability for rent for the unexpired term. Manifestly the damage to the real estate and the burden cast upon it by the fire must in such case be borne by the landlord and not by the' tenant. The tenant is free to depart from the untenantable premises; the landlord resumes possession of his premises in the condition the fire has left them.

The defendant after the denial of his motions and requests above considered moved the court to direct a verdict for the defendant. For the reasons already considered this motion was properly de.niecl. Mo request which it was proper for the court to grant, being made to submit any question of fact to the jury, the court, did not err in assuming that the defendant did not desire to go to' the jury upon any question of fact touching the plaintiff’s intention to continue the tenancy, or election to do so, and hence did. not err in deciding upon the evidence that the plaintiff had no such intention, nor made such election, and thereupon directing , & verdict for the plaintiff.

A question of the admissibility of evidence is presented. After •defendant read from plaintiff’s letter of August 9th the extract •quoted above with respect to the removal of his property and withdrawal of his watchman, the- plaintiff was permitted to read from the same letter an extract to the effect that the bill enclosed in the letter was for extra help hired pursuant to defendant’s directions and instructions. This’ was the bill for $465.50. While this part of plaintiff’s letter did not relate to the same subject as the part read by defendant, and did not modify or explain it, Rouse v. Whited, 25 N. Y., 170; People v. Beach, 87 id., 508; Grattan v. Metropolitan Life Ins. Co., 92 id., 274, yet as it was of a nature to elicit a reply from the defendant and none was made, it was admissible upon the latter ground.

As no error of the trial court requires a reversal, and as the general term modified the judgment in defendant's favor, and the plaintiff does not appeal, the judgment of the general term must be affirmed, with costs.

All concur, except Vann, J., dissenting.  