
    Mary Oakley et al., Respondents, v. Albert Loening, Appellant.
    (New York Common Pleas — General Term,
    May, 1894.)
    Where the tenant has the absolute control of the entire premises and the lease contains no covenant by the landlord to make repairs or keep the premises in repair, the tenant is not entitled to vacate the premises under chapter 345, Laws 1860, because they become dilapidated.
    Appeal from a judgment of the General Term of the City Court.
    The appellant having argued that he was entitled to vacate the premises under chapter 345, Laws of 1860, and cited in support of his contention Tallman v. Mwjghy, 120 N. Y. 354, Bookstaveb, J., said: The distinction between that case and this is, in this case the tenant had absolute control of the entire premises; and in the Talbnan case the landlord had. In other words, in the Tollman case the landlord had to keep the approaches to the premises in repair; in this case he did not.
    Mr. Sire.— I appreciate what your honor says, that in the Talbncm case the landlord reserved to himself the control of the staircase, the control of the gas, the halls, the roof and so forth.
    Bischoff, J.— More than that, he undertook to keep the various approaches and the apartments in good condition.
    Bookstaver, J.— We do not, however, intend to hold any thing more than is necessary for the determination of this case. We follow the Court of Appeals in Suydmn v. Jackson, 54 K. Y. 450.
    Mr. Sire.—In that case the roof became out of repair, and they held the statute did not apply for the reason that it was the ordinary repair that was necessary and it was due to the gradual decay'of the premises and such repairs as a tenant was called upon to make. But in this case, because of the settling of the floor, it was necessary to have iron supports and girders. Then the walls cracked, and the question is whether the tenant ought to go on paying the rent of the premises or whether he had a right to surrender the possession. Where the premises become destroyed without the fault of the tenant,, so that he cannot have the beneficial use of it, then I say he is entitled to be relieved.
    
      Albert I. Sire, for appellant.
    
      W. P. Knapp, for respondent.
   Per Curiam.

We think, in this case, that the City Court rightly ruled that the case of Tallman v. Murphy had no application and followed rather the case of Suydam v. Jackson, which I have before referred to, for the obvious reason that in the Talbncm case the landlord was in possession of the approaches to the various appartments and was bound to keep them in a safe condition. In this case there was no covenant in the lease on the part of the landlord to make repairs or keep the premises in repair, and such being the case, the common rule prevails that the tenant is bound to do so; under the circumstances the court below should be sustained and its judgment affirmed, with costs.

Present: Bookstaver, Bischoff and Pryor, JJ.

Judgment affirmed, with costs.  