
    Mary Oakley et al., Resp’ts, v. Albert Loening, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed May 17, 1894.)
    
    Landlord and tenant—Chap. 345 op 1860.
    Where there is no covenant in the lease, on the part of the landlord, to make repairs or to keep the premises in repair, the tenant is not entitled to vacate under chap. 345 of 1860, on the ground of untenantable condition.
    Appeal from, a judgment of the general term of the city court.
    
      Albert 1. Sire, for app’lt; Lamed, Warren & Knapp, (W. P. Knapp, of counsel.) for resp’ts.
    The appellant having argued that he was entitled to vacate the premises under Chap. 345, Laws 1890, and cited in support of his contention, Tallman v. Murphy, 120 N. Y. 354; 31 St. Rep. 483.
    
      
      Affirming 57 St. Rep. 643.
    
   The Court (Bookstaver, P. J.) said:

The distinction between that case and this is that in this case the tenant had absolute control of the premises; and in the Tallman case the landlord had. In other words, in the Tallman 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 Tail-man case the landlord reserved to himself the control of the staircase, the control of the gas, the halls, roof and so forth.

Bischoff, J. More than that, he undertook to keep the various approaches and the apartments in good condition.

Bookstaver, P. J. We do not however intend to hold anything more than is necessary for the determination of this case. We follow the court of appeals in Jackson v. Suydam, 54 N. 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 ths case because of the settling of the floor it was necessary to have iron supports and griders. 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.

The Court, (Bookstaver, P. J.)

We think in this case that the city court rightly rules that the case of Tallman v. Murphy had no application and followed rather the case of Jackson v. Suydam which I have before referred to, for the obvious reason that in the Tallman case the landlord was in possession of the approaches to the various apartments 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.  