
    The Zbarazer Realty Company, Appellant, v. Adolph M. Brandstein, Respondent.
    (Supreme Court, Appellate Term,
    January, 1909.)
    Landlord and tenant: Bights, duties and liabilities in regard to premises — Bepairs, insurance and improvements — Covenants and agreements as to repairs — By lessee: Bent and advances — Bights and liabilities — Eviction.
    Where a lease of a parlor flat binds the tenant, at 'his own cost and expense, to make certain specified repairs to the demised premises, the lease will not be interpreted to impose upon the tenant the duty of repairing the roof of an extension of the building, included in his lease but repairs to which were not specified.
    In sueli ease, where the tenant made a deposit with the lessors as security for his performance, and the lessors subsequently granted the demised premises to another who agreed to hold them harmless from all claims for the return of the deposit and who afterward sued the tenant for rent, the tenant may not counterclaim against the grantee for the deposit.
    Where a tenant suffered a constructive eviction from the demised premises by reason of the landlord’s neglect to repair the roof, he is, notwithstanding, liable for installments of rent coming due under the lease before such eviction.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Isidore Neustaedter, for appellant.
    Simmons & Harris, for respondent.
   Bischoff, J.

The action was brought to recover $60 for each of the months of February and March, 1908, the rent reserved in a written lease of the parlor flat of the premises 423 East Sixth street in the city of Hew York, borough of Manhattan, which lease was dated the 27th day cf June, 1905, and made by Samuel Alter,, a predecessor in interest of the plaintiff, to the defendant, for a term of two years and eight months, beginning on the 1st day of September, 1905, and ending op the 1st day of May, 1908, The rent was $720 per annum, payable in equal monthly installments on the first day of each and every month during the term. On the 13th day of February, 1908, the defendant quit the possession of the premises, claiming to have been evicted therefrom by the plaintiff’s persistent neglect to repair the roof of the extension, which latter was a part of the premises demised, whereby the premises were caused to be flooded during inclement weather and rendered unfit for the purposes of a private dwelling to which their use was expressly restricted. On the trial the defendant pleaded his eviction from the demised premises and interposed a counterclaim for $100, that being the amount deposited by him with his lessor as security for the performance of the lease on his part and which amount the lessor agreed to return to him “ after the expiration of the lease.” The court below found for the defendant, awarding judgment in his favor for $74, that 'being the difference between the amount of the counterclaim and the proportionate rent for the month of February at the time when the defendant quit the possession of the premises.

On this appeal from the judgment it is urged for the appellant that no eviction could result from the plaintiff’s failure to repair the roof of the extension since the defendant himself was bound to make the repairs, but the lease provided that the lessee “ shall at his own cost and expense make and do all repairs to the walls, ceilings, paper, glass and glass globes, plumbing work, ranges, pipes and fixtures belonging thereto,” and this must be held exclusive of any other duty of the defendant to make repairs. Expressio unius persones, vel rei, est exclusio alterius. Whart. Leg. Max. XXXVI,, p. 87, Flanagan v. Fox, 6 Misc. Rep. 132; affd., on opinion below, 144 N. Y. 706. Were, therefore, this question of the proper interpretation of the lease the only one upon which the judgment is challenged we would be content to affirm the latter since we cannot reasonably . differ from the finding of the court below that the defendant was justified in quitting the possession of the premises for the plaintiff’s persistent neglect to make the needful repairs. Error of gravity, however, calls for the reversal of the judgment.

The plaintiff’s agreement with its immediate grantors, Weinstock & Brown, as it appears in writing, was that it, the plaintiff, would hold Weinstock & Brown free and harmless of and from any and all claims which may be made by the said tenant, or his assigns, for the return of said security.” This was not a promise to pay the amount of the security to the defendant, which would inure to his benefit, and of which he could avail himself; but the promise was one to indemnify Weinstock & Brown, that is to say, to reimburse them for what they might be required to pay because of the sum of money deposited with them (22 Cyc. 77, “ Indemnify ”); and this express promise necessarily prevents the arising of any other, by implication. The plaintiff had not contractually assumed the payment to the defendant of the security deposited, and the award thereof to him, against the plaintiff, was unauthorized.

Again, by the terms of the lease the February rent became due and payable before the defendant’s eviction. The plaintiff was, therefore, entitled to the whole rent for the month. Hurliman v. Seckendorf, 10 Misc. Rep. 550; Stein v. Rice, 23 id. 348; Fuller v. Man. Const. Co., 44 id. 219; Gugel v. Isaac, 21 App, Div. 504. True, the defendant might have been entitled to deduct from the rent reserved the reasonable value of the use of the premises for the remainder of the term, having been deprived of such use because of his eviction. But a recovery of the value of such use was the subject-matter of a counterclaim, and no such counterclaim was pleaded or attempted on the trial. It was error, therefore, to credit the plaintiff with less than the entire amount of the February rent.

For the reasons stated the plaintiff was entitled to judgment against the defendant in the sum of sixty dollars, the February rent, and a judgment for the defendant is unsupported by the record.

Gildersleeve and Guy, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  