
    Abial M. Hawkins and John J. Sullivan, as Trustees under the Last Will and Testament of John J. Worden, Deceased, Respondents, v. George Ringler & Co., Appellant.
    
      Landlord and tenant—judgment'for rent against a tenant holding over—it «res adj udicata in a subsequent action — burden of proof under a covenant by the tenant to repair.
    
    A judgment in favor of landlords, rendered in an action by them against a tenant whose lease expired May 1, 1897, to recover the rent for that month on the ground that the tenant had, by holding over, elected to take the premises for ' another year, in which action the defendant denied such holding over,' and alleged that the landlords were in possession on and after May first, is, in a subsequent action brought by the landlords against the tenant to recover the rent- from June, 1897, to January,.1898,, inclusive, and for the amount of repairs made to the premises, res adjudicata as to their right to recover the rent, and as to the fact that there had been no eviction by the landlords.
    Where the landlords’ right to recover the expense of repairing the premises is predicated on a provision in the lease that the lessee will “at its own cost and expense keep the building and premises, and all appurtenances thereto, clean and in good order and repair, and make and do all repairs thereto, and will ’ promptly comply with all rules and requirements of the board of health, police and fire departments, and all other municipal authorities of the city of New • York,” and that'“at the expiration of the said term it will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted,” the burden is upon the landlords to show that the necessity for repairs was not caused by the reasonable use, wear and tear of the premises.
    
      Appeal by the defendant, George Ringler & Co., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 7th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward Miehling, for the appellant.
    
      John J. Sullivan, for the respondents.
   Goodrich, P. J:

The plaintiffs bring this action to recover the rent of premises No. 36 Sixth avenue in the former city of New York, from June, 1897,. to January, 1898, inclusive, and for the amount of repairs made to he premises, the-action being based on a lease made in 1891 by the plaintiffs’ testator to the defendant corporation for the term of five years, ending May 1, 1897. The defendant, on the day of the date of the lease, sublet the premises to Thomas J. and James T. Wallace' for the same term. The Wallaces went into possession and occupied the premises until May 2, 1898, when the plaintiffs instituted summary proceedings to dispossess them, under which a warrant of removal was ordered on May third.

The plaintiffs, claiming that the defendant had held over after the expiration of the lease, notified it of their intention to hold it as tenant for another year, and in June, 1898, brought an action against the defendant for the May rent. ' In that action the defendant denied that it remained in possession of the premises after May 1, 1897, and alleged that the premises were unsafe and untenantable ; that the building department of the city had condemned the building as unsafe; that whatever property of the defendant was left on the premises was left there at .the instance of the plaintiffs and to prevent the fall of the building; that the plaintiffs took possession of the premises on May first and thereafter continued to hold them. The plaintiffs recovered judgment in that action.

On the trial of the present action the former judgment was offered in evidence, and the court charged the jury that the plaintiffs were entitled to a verdict for the amount of the rent. This was proper as the former judgment was res judicata between the parties.

The second.cause of action relates to the amount expended by the plaintiffs for repairs, under the 7th and 10th clauses of the lease, which reads as follows :

Seventh. That it (the lessee) will at all times during the term hereby granted, and at its own cost and expense, keep the building and premises, and all appurtenances thereto, clean and in good order and repair, and make and do all repairs thereto, and will promptly comply with all rulés and requirements of the board of health, police and fire departments, and all other municipal authorities of the city of New York.”
Tenth. That, at the expiration of the said term, it will quit and ■surrender the premises hereby, demised in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.”

The court charged the jury that it was the duty of the defendant, under this clause, to keep the premises clean and in good order and to properly comply with the rules and- requirements of the boards of the city and of the municipal authorities. There was a conflict of evidence, whether the condition of the building was occasioned by the acts and omissions of the defendant and its sub-tenants, or resulted from the natural deterioration and decay of the building itself, and whether the plaintiffs assumed and agreed to make the repairs on their own responsibility. The evidence was of such a character as to require a submission of the case to the jury, and the court fairly submitted it in a charge to which no exception was taken. It follows that the exception to the motion to dismiss the complaint is untenable.

There was no dispute as to the amount of the repairs. The defendant properly contends that the burden of proof was upon the; plaintiff to establish that the want.of repair was not caused by the reasonable nse, wear and tear of the premises, and the evidence was sufficient to establish this fact. The defendant excepted to evidence of the requirement of the health dejrartment, because the complaint alleged only requirements of the building department. But the objection was not put on the ground that the evidence offered was at variance with the pleadings, but only on the ground o'f objection previously made as to the. notice of the building department, and that the. repairs-done under this notice were done without its consent and knowledge. There is not in the record any previous objection or exception to the admission- of the notice from the building department. Besides, the defendant, in its answer, admitted that the building department ordered repairs, the nature' of which -it is unnecessary to state, and that the premises at the time of the order wei’e unsafe and untenantable.

The defendant also set up an eviction, or partial eviction, on the ground that the plaintiffs entered the premises for the purpose of doing the necessary repairs after the defendant had been notified and refused to do them. This question also was adjudicated in the former action, in which the answer set up that, on May 1, 1897, the plaintiff took and held possession of the premises; and the judgment in that action necessarily is conclusive.

We find no other exceptions requiring consideration, and are of opinion that there was evidence sufficient to sustain the verdict, and that the judgment should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  