
    J. W. Cushman & Company, Respondent, v. Edward W. Ballow & Company, Appellant.
    First Department,
    October 20, 1916.
    Landlord and tenant — implied covenant — partial eviction caused by erection of fire escape — right of tenant to proportionate abatement of rent — special damage to tenant —failure to claim abatement.
    In a lease of a loft for manufacturing purposes a covenant that the tenant will conform to any reasonable alteration or regulation that may be deemed necessary for the protection of the building and the general comfort and welfare of the occupants of the same will be implied even if not expressed in terms.
    Where the lessor of such loft being required by a municipal building department to provide additional fire escapes deprived a tenant of a substantial portion of his floor space and compelled him to readjust his machinery, etc., by cutting through a wall and constructing a stairway to a loft in an adjoining building as a means of escape in case of Are, the eviction was not wrongful so as to authorize a complete suspension of rent by the tenant, but was a partial eviction under legal authority and merely entitled the tenant to a proportionate abatement of the rent.
    The tenant, however, under the circumstances, had no right to counterclaim for special damages caused by readjusting his machinery to use the portion of the property from which he had not been evicted for special damage must flow from a wrongful act on the part of the landlord.
    Where the tenant, being sued for rent, made no counterclaim in his pleadings, or at trial, for a proportionate abatement of rent, it was proper for the court to allow a recovery of the full amount.
    Appeal by the defendant, Edward W. Ballow & Company, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 22d day of March, 1916, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, fifth district, in plaintiff’s favor for an installment of rent reserved in the lease.
    
      Edward Hymes, for the appellant.
    
      Joseph Day Lee, for the respondent.
   Smith, J.:

Plaintiff is the owner of two adjoining buildings upon Twenty-third street in which are lofts which are rented to various parties. In one building there are five stories and in the other six, so that the floors in the different buildings are not upon the same level. Defendant leased a loft in one of these buildings for the term of one year and eight months. Prior to the making of the lease the plaintiff had been directed by the building department to provide additional fire escapes for the several lofts, including the one leased by the defendant. After the defendant had assumed occupation of the loft in question the plaintiff broke through its side wall into a closet there situated and constructed a stairway into the lofts in the adjoining building. This was done with the approval of the inspector of the building department as a proper way of complying with the order to provide an additional fire escape for the building. By reason of this act of the plaintiff the defendant was deprived of a substantial portion of its floor space, was compelled to readjust its machinery, to cancel some orders and to store some of its machinery. The defense is that by reason of a partial wrongful eviction by the plaintiff the rent is suspended. The Municipal Court allowed the plaintiff the full amount of rent, refusing to allow the defendant to counterclaim for the special damages done to it as above set forth. No claim was made in the Municipal Court for an apportionment of rent, and the defendant’s answer only pleaded its damages in the sum of $616.15 “by reason of plaintiff’s said act,” to wit, the acts hereinbefore stated, exclusive of depriving defendant of a portion of its floor space. The Appellate Term has affirmed this judgment, and by permission the defendant has appealed to this court.

In the 12th paragraph of the lease it is provided that the tenant shall “ conform to the resolutions governing said house, and to any reasonable alteration or regulation that may be deemed necessary for the protection of the building, and the general comfort and welfare of the occupants of the same.” Even if it is not expressed, such a covenant would be implied. The landlord had, we may assume, three ways of conforming to the direction of the. building department: First, by building fireproof interior staircases, which is not considered material because the injury to the defendant would have been greater with such construction than with the construction adopted; second, the building of exits into an adjoining loft, which was the method adopted; third, the building of a rear exterior fire escape. In determining which method should be adopted the landlord was required to consider not only its own interest in the future management of the property, but the interests of the tenants of the different lofts in the two buildings, as well as the safety of the employees. The method chosen was approved by the fire department and was confessedly as safe, if not safer, than the providing of an exterior fire escape in the rear. There is no charge of bad faith or of an intent to injure the defendant in the choice made by the landlord, and the method chosen will, under the circumstances, be deemed the alteration required by the building department in order to provide greater safety to the employees from fire. If such be the law the question becomes one easy of solution. The eviction was not wrongful so as to authorize a complete suspension of the rent within Christopher v. Austin (11 N. Y. 216), but was a partial eviction under such legal authority as would authorize the tenant to ask for a proportionate abatement of the rent within Duhain v. Mermod, Jaccard & King J. Co. (211 N. Y. 364). But this right to a proportionate abatement of the rent does not give to the defendant the right to counterclaim for other special damage in adjusting its machinery for use in the balance of the property from which it has not been evicted. Claim for such special damage can only follow from a wrongful act on the part of the landlord. (Williamson v. Stevens, 84 App. Div. 521.) Inasmuch, however, as in the case at bar no claim was made either in the pleadings or upon the trial for a proportionate abatement of the rent, a recovery for the amount of the rent due was properly sustained by the Appellate Term.

The determination appealed from is, therefore, affirmed, with costs.

Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Determination affirmed, with costs.  