
    The Gretsch Corporation, Respondent, v. Louis Borgenicht and Hyman Kornreich, Appellants.
    Second Department,
    November 10, 1911.
    Landlord and tenant — lease — provision for occupation before rent begins •—heat and elevator service—trial — erroneous exclusion of evidence.
    The lease of a loft on the fifth floor of a building provided that the lessor should furnish heat and elevator service; that the lessees should have possession of the premises for the purpose of installing their machinery on or before December 1,1910; that'no charge would be made for the use of the premises during December, 1910, and January, 1911, and that, if the lessor should be unable to deliver complete possession by December first, the tenants should be allowed to deduct rent for as many days as possession was withheld from the March rent. In an action to recover rent for March and April the answer alleged that through the landlord’s failure to furnish heat and elevator service by December first defendants were unable to install their machinery. The court on the trial excluded all evidence offered by the defendants to show that heat and elevator service were necessary for the installation.
    
      Held, that' as the trial court excluded the evidence offered, it would be assumed on appeal that such facilities were necessary for the installation of the machinery;
    -That the privilege to the tenants to enter upon the premises December first and install their machinery was more than a mere license and was . an essential part of the lease;
    That a judgment in plaintiff’s favor for the full rent reserved should be reversed, and a new trial granted.
    Appeal- by the defendants, Louis Borgenicht and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on' the 9 th day. of May, 1911.
    
      
      Simon Sultan, for the appellants.
    
      M. V. McDonald, for the respondent.
   Thomas, J.:

The lease between the parties herein for a term beginning February 1, 1911, stipulated that the lessor should furnish heat and elevator service, and that the lessee “shall have possession of the demised premises for the purpose of installing their plant and machinery on or before December 1, 1910, and that no charge will be made for • use and occupation of said premises for the month of December, 1910,. and January, 1911,” and that “ in case the landlord is unable to deliver complete'possession. by December 1, as above provided in that case tenant shall be allowed to deduct rent for as many days as possession' is withheld, after December 1st, to be deducted from March rent 1911.” Two actions, .brought severally to recover installments of rent for March and April, 1911, were tried together, and recoveries for the full rent reserved followed. The defense was that through the failure of the lessor “to deliver complete possession by December 1, as above provided,” the plant and machinery could not be .installed, until a date in January. The heat arid elevator service were not furnished for the purpose of the installation, and the only question is whether the lease required it. It should be assumed that these facilities were necessary for installation, as the court excluded all evidence in that regard. The lease was of the fourth and fifth floors for manufacturing purposes, and the machinery was to be installed in the fifth loft, and it may be that the elevators were necessary to raise them to their location, and it may not be beyond reasonable inference that in December some degree of warmth would be demanded by workmen. In any case the defendants would show that elevator. and heat were needed. Hence the inquiry is, whether, if it be assumed that heat and elevator were needed for installation, the lease stipulated to provide the same for the purposes of installation. The respondent regards subdivision 20 as a mere license, but it seems rather to be. one of the inducements to the defendants to make the lease and an essential part of it. Hence, whatever of the facilities covered by the lease would be reasonably necessary in contemplation of the parties to install the plant, the lessor should have had ready by December first. But the trial court precluded all inquiry tending to show what unfurnished was needed,' and this court is disabled thereby from due consideration, unless it shall decide that the lease by subdivision 20 covenanted for the readiness of the building without the facilities for its use for the installation. But by what means should the machinery be raised to the fifth floor ? The respondent suggests the stairs, but nothing shows their adequacy, and use of them for lifting to place heavy machinery is not customary. It would be well to have the action retried and facts admitted to the record that present the defendants’ contentions.

Hence the judgment should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Burr, Carr and Woodward, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  