
    Isaac S. Kip et al., Executors, etc., Appellants, v. Joseph Merwin et al., Respondents.
    (Argued March 25, 1873;
    decided May 6, 1873.)
    Where a lease contains a condition that in case the demised premises are so damaged by fire as to be untenantable, the rent shall cease until the same shall be put in good repair; the fact that the tenant or a sub-tenant continues to occupy a portion of the premises after a fire is not of itself conclusive evidence that the premises are tenantable. Evidence of the circumstances which induced the tenant to remain is proper.
    
      Appeal from, judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment in favor of defendants entered upon a verdict, and affirming an order denying motion for new trial.
    This action was brought to recover a quarter’s rent of a building, Ho. 94 Chambers street, Hew York, leased by plaintiffs’ testator to defendants for two years from May 1st, 1868. The lease contained the following clause:
    “And it is further agreed between the parties to these presents that in case the premises hereby leased shall be partially damaged by fire, but not rendered wholly untenantable, the same shall be repaired with all proper speed at the expense of the said parties of the first part (the lessor): but in case the damage shall be so extensive as to render the premises untenantable, the rent shall be proportionably paid up to the time of such destruction, and shall from thenceforth cease until such time as the same shall have been put in good repair.”
    The defendants underlet the first floor, basement and sub-cellar to Hotchkiss Brothers. On the twenty-first February a fire occurred, which damaged the building. The sub-tenants remained in possession and occupancy of their portion of the demised premises after the fire.
    Plaintiffs’ counsel asked the court to charge that the defendants, by their under-tenants, did in fact occupy and use a large portion of the building from February twenty-third to April fifteenth, and are estopped from denying that the premises were tenantable, which request was refused, and plaintiffs’ counsel excepted. Further facts appear in the opinion.
    
      Zwingston K.Miller for the appellants.
    Defendants did not quit and surrender possession of the premises after the fire, and cannot claim the benefit of the act of April 13th, 1860. (Johnson v. Oppinheim, 12 Abb. Pr. [N. S.], 449; S. C., 43 How. Pr., 433.)
    
      W. Stanley for the respondents.
    The fact that occupation of the premises was not actually abandoned was not proof that the premises leased were not untenantable. (Doupe v. Genin, 1 Sweeny, 25; affirmed, 45 N. Y., 119.)
   Rapallo, J.

If the premises were rendered wholly untenantable by the fire, the defendants were entitled to a verdict, notwithstanding that the building was not destroyed, but only partially damaged. This is the plain meaning of the covenant contained in the lease. The court submitted to the jury the question whether or not the premises were rendered wholly untenantable by the fire, and no objection was made by the plaintiffs to such submission. It was not claimed at the trial that the evidence was not sufficient to warrant the submission of that question to the jury, nor was any exception taken to the definition given by the court of the term tenantahle, nor was the court requested to give any further or different instruction to the jury on the subject. The jury, in finding a verdict for the defendants, have necessarily found that the premises were rendered wholly untenantable, and that finding is conclusive in this court.

The request to charge that the occupancy by Hotchkiss Brothers, the under-tenants of the defendants, of the first floor and basement and cellar, after the fire, estopped the defendants from denying that the premises were tenantahle, was properly refused. It appeared in evidence that the stock of Hotchkiss Brothers consisted of mineral water in bottles, and was not liable to be injured by wet or dampness; that they had a large amount of it stored in the basement and cellar, and they preferred remaining, though at great inconvenience, to the expense and loss consequent upon a removal. Such an occupancy was not inconsistent with the allegation that the premises were untenantable. The evidence showing the circumstances which led them to remain was properly admitted. The terms of the lease did not require that the tenants should abandon their possession to entitle them to a suspension of the rent.

The rent received by the defendants from these under-tenants was paid over to the plaintiffs, and they have no ground for complaint in that respect.

We have examined the various exceptions contained in the case, and find none which we deem well taken.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  