
    OAKLEY et al. v. LOEMING.
    (City Court of New York, General Term.
    March 9, 1894.)
    Landlord and Tenant—Duty on Landlord to Repair.
    Laws 1860, c. 345, which provides that, where a leased building becomes unsafe and untenantable without fault of the lessee, he may surrender possession, and be released from liability for rent, does not apply except where the lessor retains control over the building.
    Appeal from trial term.
    Action by Mary Oakley and Sarah Oakley against Albert Looming to recover rent. From a judgment in favor of plaintiffs, defendant appeals. • Affirmed.
    Argued before VAN WYCK, McCAETHY, and NEWBUBGEB, JJ.
    A. I. Sire, for appellant.
    Earned, Warren & Knapp, for respondents.
   NEWBTTRGEB, J.

The complaint charged the defendant with the nonpayment of rent upon a certain lease, and also with nonpayment of Croton water rates on the premises. The answer admitted the lease, but alleged that, before the rent claimed became due, the building became unsafe, dangerous, and untenantable, without any fault of the defendant, whereupon he abandoned the premises and surrendered possession thereof. At the trial the defendant was allowed the affirmative of the issue. At the close of the defendant’s case the trial justice directed a verdict for the plaintiffs, from which direction, and the verdict and the judgment entered thereon, this appeal is taken.

The direction of the trial justice was proper. The case of Tallman v. Murphy, 120 N. Y. 345, 24 N. E. 716, cited by appellant’s counsel, is not applicable to the facts in this case. In that case the owner retained control over everything common to the whole building, of which each tenant had the use or beneficial enjoyment, and therefore the landlord was in duty bound to make all necessary repairs, and remedy any defects that might appear in the building. No such duty was chargeable to the plaintiff herein. It was the duty of the defendant herein to have made the necessary repairs, and Laws 1860, c. 345, which he seeks to invoke, does not apply to the action. The judgment must therefore be affirmed, with costs. All concur.  