
    Francis J. Markham, Respondent, v. David Stevenson Brewing Company, Appellant.
    
      Covenant by a tenant to malte all repairs —an eviction or acceptance of a surrender is not created by the landlord’s malting repairs directed by the building department.
    
    In an action brought to recover rent under a lease which provided that the lessee would, at its own expense, make all repairs to the -demised premises of every description whatsoever, both inside and outside, it appeared that, during the term, the building department of the city in which the premises were situated-declared the building unsafe, and served the lessor and lessee with a notice-requiring them to make the necessary repairs; that the president of the lessee, then informed the lessor that the repairs would cost about $3,000, and that his-company did not consider that such repairs were within the contemplation of the lease, or that it should be required to pay any of the expense thereof;, that the lessee would continue -to pay the rent, but did not want a lawsuit, that is, if the lessor would make the repairs. It further appeared that the lessor then served the lessee with a notice requiring it to comply with the. order of the building department, and stating that, in the event of its failure-to do so by a fixed date, the lessor would proceed to comply therewith and hold the lessee responsible for the expense.
    
      Held, that "the lessee’s refusal to make the repairs, coupled with the statement that it would continue to pay the rent if the lessor would make them,, justified the lessor in entering upon the premises for the purpose of making the repairs,, and that such an entry could not be considered as an acceptance of a surrender of the premises.
    Van Brunt, P. J., dissented upon the ground that a subsequent attempt to rent the building constituted an acceptance of the surrender.
    .Appeal by the defendant, the David Stevenson Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of'the county of New York on the 24th day of November, 1899, upon the verdict of a jury,, rendered by direction of the court, and also from an order bearing-date the 20th day of November, 1899, and entered in said clerk’s office, denying the defendant’s- motion for a new trial made upon-the minutes.
    
      George H. Taylor, Jr., for the appellant.
    
      John H. Corwin, for the respondent.
   Ingraham, J.:

The action was brought to recover rent for certain premises in the city of New York for the month commencing December 1, 1896.. The lease was dated November 23, 1894, and demised the premises to the .defendant at the yearly rent of $2,100, to be paid in equal monthly payments, in advance, on the first day of each month for five years, from the 1st day of May, 1896 ; and the party of the second part (defendant) covenanted and agreed to make all and every repair of every description whatsoever, botli inside and outside of the house and about the demised premises, and to the roof of the said buildings, at its own proper cost and expense. The answer, admitting all of the allegations of the complaint, alleged that prior to December 1, 1896, the defendant was evicted from the premises, and for a second defense alleged that prior to the 1st day of December, 1896, the defendant surrendered the premises to the plaintiff, which surrender was.duly accepted by the plaintiff. Upon the trial the defendant was awarded the affirmative of the issue, and offered evidence tending to show that in October, 1896, an inspector of the building department made an examination of the premises in question and found that a portion of the foundation of the building was gone; that the southerly gable wall was bulged ; that the first tier of beams and 'a part of the stud partitions were rotten, and that the building was unsafe; that in order to put the building in a safe condition the foundation tier of the southeast corner would have to be taken- down ánd rebuilt, and the greater part of the southerly wall, and all the rotten and defective timbers throughout had to be taken ■down, and the girders had to be taken out and replaced with new .and sound material; that after this examination a notice from the building department, dated October 9, 1896, was served upon the plaintiff, as landlord, and the estate of David Stevenson, as lessee, requiring the persons to whom the notice was addressed to make the premises safe and secure. The president.of the defendant testified that in October, after this notice had been received, he had an interview with the plaintiff and stated to him that the repairs- to the building would cost something like $3,000; that, the defendant did not consider that these repairs were what the lease called for, and that the defendant should not be '.'called upon to pay any of-the ■expense. The witness further said that he told the plaintiff .that, .the defendant would' go on and pay the rent, but did not want a lawsuit, that is, if he would -make the repairs; that on October 30, 1896, the plaintiff served a notice upon the defendant calling its attention to the order of the department of buildings and requiring the defendant to comply with the order of such department, and that in default of its doing so on or before November 5, 1896, the plaintiff would proceed to comply with such order and would hold the defendant responsible for the amount of money which the plaintiff would be obliged to expend in complying therewith; and that the plaintiff did .the repairs required in the months of November and December, 1896.

When the defendant rested its counsel, in answer to a question as to which of the two defenses set up in the answer the defendant would elect to rely upon, stated that he preferred to stand upon the question of surrender and acceptance; that the defendant had •abandoned the premises and had shown through their own concession that the plaintiff went in and took possession. Plaintiff’s •counsel then moved to direct a verdict for the plaintiff, when defendant’s counsel stated that he wished to submit to the jury the question whether the landlord accepted the premises and took upon himself to exercise acts of dominion upon them, and whether he had not entered into possession. This was denied, and the court then directed a verdict for the plaintiff.

It would seem that the court was right in this disposition of the •question. There is not the slightest evidence of an eviction, nor would the evidence justify a finding of a surrender of the premises by the tenant and an acceptance of such surrender by the landlord. Under the lease the defendant was required to make all repairs to the premises, and the fact that the building was out of repair was itself evidence that the defendant had failed to comply with its •covenant to make the necessary repairs and to keep the building in good condition. When the building department condemned the building the plaintiff was entirely within his right when he called upon the defendant to make the necessary repairs to the building under the covenants contained in the lease. The refusal of the •defendant to make such repairs, with the statement of the defendant’s representative that it would go on and pay the rent if the plaintiff would make the repairs, justified the plaintiff in entering upon the premises to make Such repairs; and such an entry coulc not be considered as an acceptance of a surrender of the premises by the defendant, when the defendant was expressly notified that ■ sueh an entry was in compliance with the order of the building .department to enable the landlord to comply with the law and that the plaintiff refused to accept a surrender of the premises from the tenant. • Certainly the plaintiff was not required to stand by and see the building fall, incurring the penalties which would follow.. Here all the circumstances show that there was no intention of the tenant to surrender the premises or of the landlord to accept such a surrender if made. The dispute between the parties was as to the one that should pay for the repairs, and the plaintiff’s act in making such, repairs as he was required- by law to make, and which he made at the request of the defendant, co.uld not be considered as an eviction, of the defendant or an acceptance of a surrender of .the premises.

The judgment and order appealed from should, therefore, be: affirmed, with costs. . ' ■

. Patterson, Rumsey and Hatch, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. The attempt to rent the building, there being no-reservation in the lease, was an acceptance of the surrender of the premises.

.. Judgment and order affirmed, with costs.  