
    David L. Einstein, Appellant, v. Joseph Levi and Others, Composing the Firm of Levi, Zimmern & Woodhall, Respondents.
    
      Lease—what is not a “ total destruction” within the meaning of a fire clause. .
    
    
      ■ As the result of a fire, the partition dividing the northern half of a loft, situate upon the third floor of a five-story building, from the southern' half, was entirely destroyed; the uprights were superficially charred, although they still remained in good condition; the floor was burned in a few spots; the ceiling was injured by holes cut through it.for the purpose of letting out the water which was upon the upper floor; all the woodwork was charred to some extent; the walls inclosing the third floor were injured so that the window panes and sashes were- destroyed, and 1,000 brick were required to replace those that were burned and cracked; and the skylight and a portion of the roof immediately surrounding it were burned.
    
      Held,, that the premises were not totally destroyed within the meaning of the provisions of a lease of the northerly half of the loft to the effect that, “in ■ case of the total destruction of the premises by fire or otherwise,” the liability . .under the lease should terminate.
    Appeal by the plaintiff, David L. Einstein, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 2d day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1897 (as amended by an order entered in said clerk’s office on the 5th day of March, 1897), denying the plaintiff’s motion for a new trial made upon the minutes.
    
      G. W. Seligman, for the appellant.
    
      F. R. Coudert, Jr., for the-respondents. . ' •
   Van Brunt, P. J.:

This action was brought to recover rent for the northerly half of ■ the second-story loft of the building known as Nos. 102, 104 and 106 Wooster street, in the city of New York. The evidence upon the trial showed that this northerly half was separated from the southerly half by a wooden partition. The lease contained the usual covenant for peaceable possession and enjoyment of the premises by the tenants, and a fire clause in the following language : “And it is further agreed between the parties to these presents that in case the building or buildings erected on" the premises hereby leased shall be partially damaged by fire the same shall be repaired as speedily as possible at the expense of the said party of the first part; 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; but in case of thé total destruction of the premises by fire or otherwise the rent shall be paid up to the time of such destruction, and then and thenceforth this lease shall cease and come to an end.” The building in question was of brick, consisting of five stories in all, one ground floor and four lofts, the loft in question being on the third floor. On the 11th of April, 1894, a fire -occurred in the building which broke out on the north side of the third floor (the loft in question). The fire burst through the front windows and also went up the .-stairs to the roof. The ■ wooden partition separating the front part of this loft from the rear part was entirely destroyed. T he uprights were superficially charred, ' but they remained in good condition in respect to strength. The ■ floor was burned in a few spots, and the ceiling was injured by holes being cut through from the floor above to let out the water which was upon the upper floor, there being from fifteen to eighteen inches of water upon that floor after the fire.. All the woodwork was charred to some extent. The walls inclosing the third floor were injured so that the window panes and sashes were destroyed, and some bricks immediately about the window smoked or displaced. It required about 1,000 brick to replace those which were burned and cracked. The skylight and a portion of. the roof immediately surrounding the same was burned up, but the balance of the roof remained. • The plaintiff proceeded at once with the work of repairing the building, taking out the charred woodwork and replacing it with new, relaying the floors where they had been burned, putting new brick around the windows where they had been cracked and burned and new windows and sashes, and repairing the roof, the skylight and stairs. TJpon the completion of these repairs the plaintiff tendered the loft to the defendants, but the defendants refused to return, claiming that the premises had been totally destroyed by fire and that the lease had, therefore, come to an end.

The learned court submitted the case to the jury, instructing them, among other things, that they should find for the defendants in case the loft in question was so damaged by fire that it did not exist as a loft for the purpose for which it was intended by the parties; and also refused to charge that there was no total destruction of the premises within the meaning of the lease shown by the evidence. The jury found a verdict for the defendants; a motion was thereupon made for a new trial, and from the judgment entered upon the verdict and from the order, denying the motion for a new trial, this appeal is taken.

We think that the learned court erred in charging that the defendants were entitled to a verdict in case the loft in question was so damaged by fire that it did not exist as a loft for the purpose for which it was intended by the parties. This was. equivalent to charging that if the premises became untenantable the lease terminated ; because, if the loft in question became untenantable, it did not exist as a loft for the purpose for which it was intended by the parties. It was intended to be occupied as a loft, and if its condition immediately after the fire was such that it could not be occupied by the tenant for the purposes of his business, it did not exist as a loft for the purpose for which it was intended by the parties.

Now, it is clear that this instruction was error. There is a clear distinction in the fire clause between the premises being untenantable and being totally destroyed. In a consideration of this appeal it is not necessary to discuss the question as • to whether the term premises ” meant the loft or the whole building. The only part of the premises let which was totally destroyed was the wooden partition. It is true that the supports were charred and the floors injured to some extent, and that the windows were broken and their surroundings burned; but there was no total destruction whatever of the premises. The walls were standing, there was a covering to the premises leased in the floor above, which was injured, not by Are, but by attempts to get rid of the water in it; and there was a floor to the premises' only injured in a few small’ places ■—the only total destruction,- as already stated-, being that of the partition. This clearly was not a destruction of the premises let, according to ■ the terms of the lease, so as,to terminate its obligations. The premises were undoubtedly rendered untenantable, and the landlord was required to repair them, which he proceeded to do. It is difficult to see, if there was a total destruction of the loft which Was let, ■What distinction is to be drawn between premises becoming untenantable by reason of fire and premises being totally destroyed by reason of fire. It seems to us that the court- also lost sight of the ■fact that, even if the premises were rendered untenantable,-and, "therefore, useless for the purpose for which they were rented, the obligations of the lease were hot terminated.

: We think-that the court also erred in refusing to charge that there was no total destruction of the premises within the terms of the ’ lease. The essential parts of the lof-t in. question were' not totally destroyed (except, perhaps, the partition and the windows). It has never yet been held that the destruction of a partition or the burning of windows is a total destruction of premises within the meaning of the ordinary fire clause of a lease such as the one in ■question, although such damage may render the premises untenantable until properly repaired. The loft in question retained its character as a loft, and, although it required much reparation to put it "in the same condition in which it was at the time of the original letting, yet there was but a small portion of its component parts renewed.

The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide event.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

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