
    George D. Gregory, Respondent, v. Manhattan Briar Pipe Company, Appellant.
    Second Department,
    September 29, 1916.
    Landlord and tenant — tenant’s covenant to make repairs construed — expense of making building conform to building code.
    Where a lease required the tenant to keep the building in repair and to perform all the ordinances of the board of health and other local municipal, county or State authorities, and as to any or all such ordinances and . requirements to protect and save the lessor harmless, except that the latter should be responsible for the expense of new roofs or foundations or outside walls, unless the impairment was caused by the overloading or negligence of the lessee, the latter is chargeable with the cost of repairs to floors, etc., necessary to make the building conform to the local building code, as ordered by the municipal]building department. Where the lessor has paid such expense, on the refusal of the lessee to meet the same, he may recover the amount of the lessee.
    Appeal by the defendant, Manhattan Briar Pipe Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of February, 1915, upon the decision of the court, a jury having been waived.
    
      Lyttleton Fox [Ernest Bhea Early and Junius Parker with him on the brief], for the appellant.
    
      Alfred T. Davison [Clarence E. Thornall with him on the brief], for the respondent.
   Putnam, J.:

The landlord has been adjudged $2,221.38 for expense of outlays upon the demised buildings ordered by the local building department, which the defendant tenant had refused to make. In December, 1905, plaintiff’s assignor leased to defendant for ten years the premises in Jersey City, which defendant used to manufacture tobacco pipes.

The lease had the following covenants:

“The burden of keeping the buildings and machinery in repair shall be borne by the Lessee, except that in the event any of said buildings have to be newly roofed, or the foundations or any of the outside walls of any of said buildings shall become impaired, then the cost of putting on said new roof or repairing said foundations or outside walls shall be borne by the Lessor, unless said impairment is caused by overloading or other negligent act of the Lessee. * * *
“The Lessee shall respect and fully perform all the ordinances of the Board of Health and all other local, municipal, county or State authorities, and as to any or all such ordinances and requirements the Lessee will protect and save the Lessor-harmless.”

In 1912 the Jersey City building department ordered certain interior repairs to conform to the local building code, such as to strengthen floors and girders and in certain parts to install new girders. The tenant refused, so that the landlord did the work, at an expense undisputed of $2,221.38, for which he has judgment.

By the lease defendant covenanted to make every description of repairs, except two kinds,‘viz., new roofs, or restoring foundations or "outer walls. The lessor has to bear the cost of new roofing. He has also to repair these foundations or outside walls unless such impairment were by overloading or the tenant’s negligence. The tenant undertook also to comply with all the regulations of municipal departments. These repairs, which are the subject of this action, were not to make good the foundations or outside walls. Appellant’s contention that these repairs involved the excepted building foundations is without merit.

Appellant relies on Herald Square Realty Co. v. Saks & Co. (215 N. Y. 427), where display windows and other encroachments beyond street lines were ordered to be removed from the leased building. When the lease was given, such projections had long been -permitted. Although Saks & Co. had agreed to comply with all requirements of the municipal departments, they were held not bound to incur this unforeseen expense of removing such exterior building projections demanded in the course of a novel enforcement of the city’s authority. The case at bar is quite different. Appellant was called on to make the building safe. The order to strengthen the floors and the need of other girders was from the use to which defendant had put these demised buildings. (Markham, v. Stevenson Brewing Co., 104 App. Div. 420; 111 id. 178; 188 N. Y. 593.)

Under its express and very broad covenant, appellant was rightly held answerable for these repairs.

Hence, I advise that the judgment be affirmed, with costs.

Stapleton, Mills and Rich, JJ., concurred.

Judgment affirmed, with costs.  