
    Sarah Lynch, Respondent, v. George W. Sauer, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Lease — Fraud and duress.
    Fraud and duress in the procurement of a lease are not available as defenses to an action for rent after acquiescence and payment of rent for almost three years.
    2. Same — Covenants.
    To constitute a breach of the covenant of quiet enjoyment in a lease, an eviction is necessary.
    3. Fraud —• Executory promise. . '
    Fraud cannot he predicated upon a promise to make improvements and a failure to do so.
    4. Lease —> Repairs to roof.
    Where the lease contains no agreement on the part of the landlord to keep the roof in repair, the enumeration of specific repairs to be done by the tenant affords no ground for claiming that he was not to ■ repair the roof,- and he is not justified in neglecting to make such repairs and abandoning the premises as uninhabitable.
    5. Same — Waiver of conditions.
    A condition precedent to the taking effect of a lease is waived by. payment of rent thereunder.
    Lynch v. Lauer, 14 Mise. 252, affirmed.
    The appellate term of the Supreme Court, the opinions of which commence with the present volume, is a division of the court appointed by the justices of the Appellate Division- of the first department, pursuant to sections 3191, subdivision 3, and 3213 of the Code of Civil Procedure, for the hearing of appeals from the City Court of ¡New York and the District courts, and from which an appeal lies to the Appellate Division.
    Appeal by the defendant from an affirmance by the General Term of the City Court of a judgment in favor of plaintiff for rent. The action was • brought upon a lease made in April, 1890, for the term of five years from May 1, 189Ó,. of premises on the. easterly side of Eighth avenue, 835.66. feet north of the northeast corner of- said avenue-and One Hundred and Fifty-fifth street, running thence northeasterly to the bulkhead line of 'the Harlem river, thence 165 feet along the bulkhead, thence to the easterly line of Eighth avenue, and thence southerly 263 feet to the placó of beginning. The rent recovered was for eight months from April 1, 1893.
    George M. Curtis and Metzger & Tabor, for appellant.
    Henry E. Howland and Anderson, Howland & Murray, for respondent. ,
   Daly, P. J.

After enjoying the demised premises and paying rent for two years. and eleven months Under his lease for five years, the lessee, upon being sued for rent subsequently accruing, interposes as a defense, that the lease was procured from him by duress and misrepresentations, and counterclaims damages by reason of the alleged fraud by which he was induced. to enter into the lease and expend money on the .premises. After so long an acquiescence these defenses are not available. It was his duty to promptly repudiate .the agreement into which he had been induced to enter by duress or fraud; and his failure to do so and continuing in possession and paying rent for nearly three years after he had full knowledge of the facts constituting the duress and fraud is a complete ratification of the contract.' Oregon Pacific R. R. Co. v. Forrest, 128 N. Y. 83; Gould v. Cayuga Co. N. Bank, 86 id. 82." . .'

But even as alleged in the answer, the counterclaim for alleged fraud is groundless. It is first alleged that the lessor falsely represented herself to be the owner in fee of the premises and had perfect title thereto, and that the defendant,. believing it to be true, expended $5,000 in improvements thereon; that the representation was false, and that third parties instituted an action in ejectment to dispossess the plaintiff. But it is not alleged that he was ever ejected or suffered the loss' of the sum so expended. An eviction is necessary to constitute a breach of the covenant of quiet enjoyment. Boreel v. Lawton, 90 N. Y. 293.

It .is next alleged that the defendant was induced to expend the sum of $5,000 (evidently-the same expenditure already referred to) on the premises by representations of the plaintiff that she would make large and extensive improvements upon the property and build a dock as a landing place for boats and vessels, and that the rent should be only nominal until the defendant would succeed in establishing a profitable business; that, after his said expenditure, the plaintiff threatened to dispossess the defendant unless he would sign the lease sued on and its execution was obtained by fraud, duress and misrepresentations, and that the plaintiff failed to make and complete said improvements. The misrepresentation here alleged is a promise to make improvements, and it is well settled that a promise to do a future act cannot be set up as a fraud. 8 Am. & Eng. Ency. of Law, 637. Where representations are promissory, there is nothing in them on which to found an action ex delicto. Sparmann v. Keim, 9 Abb. N. C. 4.

Finally, it is alleged that about April, 1893, and before the rent sued for became due, the premises became untenantable by reason of the dilapidation of the roof, and that defendant was consequently evicted and compelled to abandon the premises. There is no allegation that the lessor agreed to keep the roof in repair; and, by reference to the lease, no such covenant is found. On the contrary, the lessee agrees to take good care of the building upon the premises and to suffer no waste and to make certain specified repairs.

The enumeration of. those specific repairs in the lease affords no ground for claiming that he was not to make repairs to the roof, for those are ordinary repairs which it is the duty of the tenant to make, and he is not justified in neglecting to make them and thereafter abandoning the premises as uninhabitable. Suydam v. Jackson, 54 N. Y. 450.

It is urged by the appellant that the agreement to make improvements upon the property, and that the rent should be only nominal until the lessee’s business became profitable, was a condition precedent to the taldng effect of the lease. But the defendant, by the paying of the rent from the commencement of the term, has recognized the validity of the lease and waived the condition, if any could be claimed upon the facts.

The judgment and order appealed from affirmed, with costs.

McAdam and Btschoff, JJ., concur.

Judgment and order affirmed, with costs.  