
    Graves v. Berdan.
    At common law, and independently of the statute (ch. 345 of 1860), the lessee of apartments in the, upper story of a building, where there is no covenant, by either landlord or tenant, to rebuild, is discharged from his covenant to pay rent 'hy the burning of the building so that his enjoyment of the space in air demised to him becomes thereby impracticable.
    Otherwise, it seems, where the demise is such as to give the tenant an interest in the soil, and to authorize him to rebuild, so that thereby, or otherwise, he may have some beneficial enjoyment of the demised premises.
    Appeal from the Supreme Court. Upon the trial in "the City Court of Brooklyn, before Judge Culver, without jury, he found these facts : In May, 1856, the defendant leased from the plaintiff, for the term of five years, certain rooms and-passage ways in the basement, the ground story, and on the second floor of a large building known as the City Central Hall, in Brooklyn, covenanting to pay, as rent therefor, yearly, the sum of $2,700, in equal quarterly payments. The building was also occupied by other persons, to whom apartments had been separately let. On the 6th May, 1857, the building was totally destroyed by fire. Soon after the casualty the plaintiff entered upon the land and removed the ruins of the walls of the building and other rubbish, and the defendant removed the machinery, brickwork and materials which had been introduced therein by him; and the plaintiff afterwards erected a building one story high, upon a portion of the ground formerly covered by the destroyed building, beneath a portion of the premises leased to the defendant, but not reaching up to the same; the new building not encroaching upon or including any portion of the space demised to the defendant. After the fire, the premises (except as above stated) remained vacant, and not used or occupied by either party. The lease contained no stipulation on the part 'of either landlord or tenant for rebuilding. The action was to recover the rent for a quarter subsequent to the fire. The judge ordered judgment for the plaintiff. Upon appeal to the Supreme Court, the judgment was reversed and the plaintiff appealed to this Court.
    
      John Winslow, for the appellant.
    
      E. H. Kimball, for the respondent.
   Rosekrans, J.

The opinion delivered by Justice Emott in this case, in the Supreme Court, is a correct exposition of the law applicable to it, and for the reasons stated therein, the judgment should be affirmed. The case of Stochwell v. Hunter (11 Metc., 448), may be added to the authorities cited by Justice Emott to show that alease of basement rooms, or chambers, in a building of several stories in height, without any stipulation, by the lessor or lessee, for rebuilding, in case of fire or other casualties, gives the lessee no interest in the land upon! which the building stands, and that if the whole building is ■ destroyed by fire, the lessee’s interest in the demised rooms is . terminated, and the lessor may, after the destruction of the - building, enter upon the soil and rebuild upon the ruins of . the former edifice.

It may be added that at common law, where the interest of the lessee in a part of the demised premises was destroyed by the act of God, so that it was incapable of any beneficial enjoyment, the rent might be apportioned. In Rolle’s Abridgment, 286, it is said that if the sea break in and overflow a part of the demised premises, the rent shall be apportioned for though the soil remains to the tenant, yet as the sea is open to every one, he has no exclusive right to fish there. A distinction is taken between an overflow of the land by the sea, and fresh water, because, though the land be covered with fresh water, the right of taking the fish is vested exclusively in the lessee, and in that case the rent will not be apportioned. In the latter case the tenant has a beneficial enjoyment, to some extent, of the demised premises, but in the former he has none, and if the use be entirely destroyed and lost, it is reasonable ' that the rent should be abated, because the title to the rent is ; founded on the presumption that the tenant can enjoy the ; demised premises during the term. (Com. Land, and Ten., 218; Gilb. on Rents, 182.)

Where the lessee takes an interest mthe soil upon which a building stands, if the building is destroyed by fire, he may use the land upon which it stood, beneficially, to some extent, without the building, or he may rebuild the edifice; but where he takes no interest in the soil, as in the case of a demise of a " basement, or of upper rooms in the building, he cannot enjoy the premises in any manner after the destruction of the building, nor can he rebuild the edifice. He cannot have the exclusive enjoyment of the vacant space formerly occupied by the demised rooms. The effect of the destruction of the building, in such a case, is analogous to the effect of the destruction of demised premises by the encroachments of the sea, mentioned in Eolle’s Abridgment; and the established rule for the abatement or apportionment of the rent, should be applied in the former as well as in the latter case. The same reason exists for its application in both cases.

But even if the lessee’s interest in the demised apartment, in a case like this, was not terminated by the total destruction of the building, it may be doubted whether the lessee- could recover ren< so long as he failed to give to the demised upper rooms the support necessary to them for special enjoyment. The rule seems to be settled in England, that where a house is divided into different floors or stories, each occupied- by different owners, the proprietor of the ground floor is bound, by the nature and condition of his property, without any servitude, not only to bear the weight of the upper story, but to repair his own property so that it may be able to bear such weight. The proprietor of the ground story is obliged to uphold it for the support of the upper story. (Humphrey v. Brogden, 12 Q. B., 739; S. C., 1 Eng. Law and Eq., 241; Rowbothem v. Wilson, 36 id., 236; Harris v. Roberts, 6 El. and Br., 643; S. C., 7 id., 625.) In the case last cited the duty of such support is recognized as a general common-law right. In a lease of upper rooms by the owner of the entire building, a covenant should be implied on the part of the lessor to give such support to the upper rooms as is necessary for their beneficial enjoyment. It has been decided in this court that the statute forbidding the implication of covenants in conveyances of real estate, does not apply to leases for years. (Mayor of New York v. Maybee, 3 Kern., 151; Vernam v. Smith, 15 N. Y., 332, 333.)

The judgment should be affirmed.

Denio, Ch. J., Selden, Balcom and Marvin, Js., concurred.

Wright, J., (dissenting.)

It has long been the doctrine of the English courts, as well as our own, that upon a lease for years, with a covenant to pay a stipulated annual rent, the rent is payable by the less^üto the end of his term, though the property be destroyed by fire (Paradine v. Jane, All., 27; Monk v. Cooper, 2 Stra., 763; Belfour v. Weston, 1 Term, 310; Weigall v. Waters, 6 Term, 488; Hallett v. Wyler, John., 44; 3 Kent’s Com., 612), and that the lessee has no relief against an express covenant to pay the rent, either at law or in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. (Gates v. Green, 4 Paige Ch., 355; Fowler v. Balt 6 Mass., 63; Philips v. Stevens, 16 Mass., 238.) Harshly as this rule operated in many cases, it was deemed so firmly settled in this State, that in 1860 the legislature interfered, and, by statute, provided, “ That the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupation, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.” (Laws of 1860, ch. 345.) The foundation of the rule, as stated by Sergeant Williams, in his note to Walton v. Waterhouse (2 Saund., 422), is this: “ When the law creates a duty, and the party is disabled to perform it, without any default in him, and he has no remedy over, the law will excuse him; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” In a case where a lessee binds himself, by express covenant, to pay the rent during the term, and there is no exception in the lease of casualties by fire, notwithstanding the house should be burnt down by accident, he is bound to pay, for the simple reason that he has bound himself by an express covenant to do so.

But it is said that another principle controls where the demised premises (as in this case) consists of rooms in a building and not the whole building, viz.: that by a total destruction of the building containing the rooms, the lease itself, and all rights and interests under it, terminate. The argument by which the contract of letting is avoided, and the lessee is absolved from his express covenant to pay the rent during his term, is ingenious, but I think without authority to support it. The contract of the lessee, it is claimed, is distinguished from ordinary contracts by the peculiar character of the payment he undertakes to make, that is, to pay rent, which is defined to be certain profit issuing yearly out of lands and tenements corporeal, in retribution for their use; and when the estate, out of which the rent issues, is gone, and the thing demised no longer exists, nothing remains to support the covenant, or out of which the rent can issue. But if there can be any solid distinction between an express contract to pay rent for demised premises, and any other ordinary contract, growing out of the fact that the estate demised has absolutely ceased to exist, that would not be this case. It is conceded that if the defendant had been the lessee of the entire building, though it had been totally destroyed by fire, he would have been bound to pay the rent; and that, in such case it could not be said that the estate, from which the rent was to issue, had ceased to exist. Nor, when the demised premises consist of parts, and not of the entire building, can the lessee’s estate, in contemplation of law, be considered as gone. The building is a part of the land, and there may be several distinct tenements under the same roof; and tenements are as essentially distinct when one is under the other, as when one is by the side of the other. (Long v. Bacon, 4 Mass., 575; Cheesebrough v. Green, 10 Conn., 318; Proprietors of Meeting House in Lowell v. City of Lowell, 1 Metc., 538.) There can be no doubt that the subject matter of the demise, in this case, was, in the eye of the law, as much land as the soil on which the building stood. A lease of a distinct portion of a house is a conveyance of an interest in real estate. (Sprigg v. Cro. Car., 554; Inman v. Stamp, 1 Stark., 10.)f' Can it, therefore, make any difference that the land is leased in distinct portions to several instead of but one tenant, or because it may become physically impossible for each of the tenants to rebuild' or reconstruct his portion of the demised premises, he is exonerated from his covenant to pay the rent ? I think not. But whether one of several tenants of rooms in a single building is to be regarded as having any tangible interest in any portion of the land covered by the building or not, or whether a lease of rooms in a building carries only an estate in the particular rooms demised, and upon a total destruction of the building, no estate, in legal contemplation, remains, out of which rent can issue, still the tenant having covenanted to pay the rent, would be liable on his covenant. 3STo legal distinction, growing out of the peculiar character of the payment to be made, can be taken to relieve him from his express undertaking to pay. When the lessee of -demised premises covenants to rebuild, he is bound to do so, although the tenement be destroyed by the elements, without any default on his part, for he has, by his own contract, created the duty or charge upon himself. So also (says Sergeant Williams), he “ is bound to pay the rent during the term, though the house should be burnt or blown down, if there be an express covenant for payment of the rent, for the same reason and upon the same principles, that he is bound to rebuild, namely: because he has bound himself by an express covenant to pay the rent.” (Walton v. Water 2 Saund., 422, note 2.) This was undoubtedly the rule of the common law, and it was only competent for the legislature to change it, which has been done since this action arose.

The facts found do not show an eviction. The landlord removed the ruins of the walls of the building, and other rubbish, and the tenant removed the machinery, brickwork and materials which had been introduced by him, and this without objection from either party. The new building erected by the plaintiff ‘does not reach upon any portion of the space' demised to the defendant, but the same has remained vacant and unoccupied since the fire. The fact is not found that the landlord took possession of the ruins for the purpose of rebuilding, without the consent of the tenant; nor with his assent. Indeed, all that was done, so far as the demised premises were concerned, was the removal, by both parties, of a certain quantity of rubbish, &c., therefrom.

I think the judgment should be reversed, and that of the City Court of Brooklyn affirmed.

Davies, J., also dissented.

Judgment affirmed.  