
    Second Department,
    March, 1910.
    William Spence, Respondent, v. August Charrot and Alphonse Henry, Appellants.
    
      Landlord and tenant— lease — acquisition of- title by city — destruction of premises —surrender.
    
    Appeal by the defendants, August' Charrot'and another, from a judgment of the Supreme Court'in. favor of the plaintiff, entered in the office of the Cleric of the county of. Kings on the 22d day of January, 1909, by direction of the Court upon the pleadings on a trial at the- Kings County Trial Term.
   Thomas, J.:

The defendants appeal from, a judgment- entered on the pleadings. The defendants' were lessees of a.store and a portion of the basement of 58 Flatbush avenue. . The -term was from January 1, 1903, to April 30, 1907. ■ The plaintiff sues for the rent for the year 1906 and the following four months. The defendants denied rent due, and stated three defenses: Mrst, that proceed-, ings were bégun’March 6, 1905, by the city of Hew -York for the widening of Livingston street; that the plaintiff and defendants above named were adverse .parties in and to the aforesaid condemnation proceeding, in which the total destruction of the building or leasehold premises described in' the complaint was a material issue, said issue being therein actually -litigated and necessarily involved, and it was therein, by said final order, adjudged and determined oil the merits that the said building or leasehold premises were totally "destroyed, and the plaintiff and defendants compensated in accordance with such determination by the award of full damages for a total destruction of said, building or leasehold premises, Recording to their respective interests; .that the city, on or about the,11th day of Hovember, Í905, acquired title ‘'to part” of the premises, and took possession of such part in January, 1906; that thereafter it tore down and removed the entire front wall of the building, and a part of the side walls, whereby the defendants were deprived of the use and possession of the premises, which became untenantable by reason of such destruction, and that the defendants elected to quit and surrender the part of the premises not acquired by the city, and did so quit and surrender the same to the plaintiff, who went into possession thereof. The second defense is that upon hearings before the commissioners the plaintiff proved that by reason df the city’s acquiring title the building erected on the premises would be totally destroyed, and that the commissioners duly found that the removal of the front wall and part of the side wall of 'the building would cause a total loss of said building and awarded to plaintiff a sum which adequately compensated plaintiff for the total loss and destruction of said building. For a third defense the defendants allege that during the pendency of such proceedings plaintiff represented to defendants that upon the city acquiring title plaintiff would tear down the entire building and erect á new building, and that upon such acquisition of title the defendants’ lease would cease and determine, and that defendants would thereupon be required to give up the use and possession of said premises and surrender the same to plaintiff; and in a separate paragraph it is alleged that defendants relied upon said representations, and caused another building owned by defendants to be altered so as to be suitable for their business “and thereafter quit and surrendered the said premises to plaintiff as said plaintiff represented they would be required to do.” . It will be observed that in the third defense the defendants do not state at what date they surrendered the premises. They “ thereafter quit and surrendered,” that is, after, the things enumerated in paragraph II. They vaguely state that they quit and surrendered their premises at some time before the expiration of the term by reason of the direction that they should do so upon the city acquiring title. The first defense is in effect that the city sought the title to part of the lot against the present parties; that they and the-city contested the question whether the taking would involve the destruction of the building; that it was adjudged that the leasehold premises were totally destroyed, and the landlord and tenants compensated as for total destruction; that in January, 1906, the city took possession of part of the premises,- and later tore down the front wall and side wall of the building, whereby the defendants were deprived of the use and possession of the building thus made untenantable, and thereafter elected to surrender and did quit and surrender the part of the premises not acquired by the city, to the plaintiff. . Here is the same indefinite statement as to the time of surrender. Non constat such surrender did not take place until the lease expired. I think that the allegation of surrender adds nothing to the effect of the other facts staled in this defense. Section 996 of the charter' (Laws of 1901, chap. 466) is as follows: “In all cases where the whole of any lot or parcel of land or other premises, under lease or other contract, shall be taken for any of the purposes aforesaid, by virtue of this title, all the covenants, contracts and engagements between landlord and tenant, or any other contracting parties, touching the same, or any part thereof, shall, upon the vesting of the title in The City of Hew York, cease and determine and be absolutely discharged; t and in all cases where part duly of any lot or parcel of land, or other premises, so under lease or other contract, shall be so taken for any-of the purposes aforesaid, all contracts and engagements respecting the same shall, upon such vesting of title, cease, determine and be absolutely discharged as to the part thereof so taken, but shall remain valid and obligatory as to the residue thereof, and the rents, considerations and payments reserved or payable, and to be paid, for or in respect to the same, shall be so apportioned as that the part thereof justly and equitably payable, or that ought to be paid, for such said residue thereof, and no more shall be demanded or paid, or recoverable, for or in respect of the same.” The defendants do riot ask to apportion the rent. Therefore, to invoke this section, they must show the equivalent of total destruction. Their lease covered only the store and part of the basement. They allege acts that amount to destruction thereof. Moreover, they charge that total destruction was adjudged, and compensation ordered accordingly.. In the second defense they show that the plaintiff proved total destruction, and obtained an award and compensation therefor. .So by the pleading it appears that the plaintiff recovered compensation for what he had leased to defendants upon the ground of the total destruction of the leased property. The city took title to part of the destroyed property on November 11, 1905, but the statement in the- answer is that the defendants did not quit and surrender the part not taken by the city until some time after the city took possession in the month of January, 1906. For aught that appears in this defense, they did not surrender the premises before the expiration of the lease. I am inclined to think that a new trial should be had by reason of the third defense. In the absence of any demand for apportionment of the rent in the pleadings, the plaintiff may recover the whole rent to the time that the defendants actually quit and surrendered the premises, if they are proven to have done so. This decision is based entirely upon the statements in the answer, and is only available to the defendants in case they support such statements by evidence. The judgment should be reversed and a new trial granted, costs to abide the event. Woodward, Jenks, Burr- and Rich, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.  