
    Leo Frank, Appellant, v. The Morewood Realty Holding Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1915.)
    Landlord and tenant — rent paid in advance — tenant’s right of action for withholding possession of premises while repairs were being made.
    A tenant who has paid the first month’s rent in advance is entitled to recover for the use of the premises during the time he was kept out of possession while the landlord was making necessary repairs as he had agreed.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing complaint.
    
      Charles L. Greenhall, for appellant.
    Holt, Warner & Gaillard (William D. Gaillard, of counsel), for respondent.
   Guy, J.

On June 29, 1914, the plaintiff leased from the defendant an apartment in an apartment house in the borough of Manhattan, city of-New York, for the term of three years commencing October 1, 1914, at the annual rental of $2,000, payable in equal monthly payments in advance. At the time of the execution of the lease the defendant gave the plaintiff a letter stating “ that in consideration of the execution by you of said lease ” the lessor agreed to make certain specified repairs throughout the'apartment. No time was stated when these repairs would be made.. On July first the plaintiff paid the monthly rental of $166.66 for October.

. On October 1, 1914, the commencement of the term of the lease, when the plaintiff’s wife went to the apartment, it was in the hands of defendant’s carpenters and painters; the floors were being ripped up and the papers were being pulled down from the walls, and the apartment was occupied by these workmen making the repairs until October fifteenth, during which time it was not habitable by the plaintiff.

When the apartment was hired and until the plain-, tiff obtained actual possession, after October fifteenth, the plaintiff resided at the San Jacinta apartment house, which was of the same general character of dwelling as the demised premises, and the rental of the San Jacinta apartment paid by the plaintiff for the two weeks from October first to October fifteenth was seventy-five dollars.

The action is based on the claim that because of his failure to obtain possession of the apartment from October first to October fifteenth, the plaintiff was damaged in the sum of seventy-five dollars the rental actually paid by him for the San Jacinta apartment during that period.

The repairs which the landlord agreed to make to the demised premises, which were in the possession of another tenant down to the forenoon of October first, were the ordinary ones necessary to put an apartment in a clean, sanitary and habitable condition for a new tenant; and the contract constituted by the lease and defendant’s letter was a lease not'merely of the apartment itself, hut of the apartment put in the condition called for by the repairs specified, from October 1, 1914. The defendant did not comply with its agreement for no such apartment was ready for the tenant’s occupancy on October first; two weeks elapsed before the landlord could comply with its agreement, and there was accordingly a failure of consideration for the rent paid by plaintiff for that period. See Meyers v. Liebeskind, 46 Misc. Rep. 272; Kopelman v. Gritman, 76 id. 188.

Against the objection of the plaintiff the defendant showed that, about the time of the making of the lease, the plaintiff’s wife was informed that the demised apartment was. occupied by another tenant; that defendant’s superintendent told her that the premises were hers from October first, and the repairs would be made as quickly as possible after she got possession of them; that as soon as he could get into the apartment he would make the repairs; that he thought there might be a chance of his getting possession about the twentieth of September so that he could begin work on it, and the plaintiff could get into it about the first of October.

These statements made to the lessee’s wife in no way affected the legal duty of the defendant established by the written agreement, and do not show an agreement by the lessee to pay rent f.or a time during which he might be deprived of the possession of the apartment.

The landlord not only did the work called for by its agreement, but also made repairs which were not included therein, ripping up the floors of the apartment for that purpose.

The proper measure of the,damage sustained by the plaintiff was the value of the use of the apartment of which he was deprived from October first to October fifteenth by defendant’s retention of the premises, an amount in excess of the damage alleged in the complaint.

The judgment must, therefore, be reversed and judgment awarded the plaintiff in the sum of seventy-five dollars, with costs of the appeal and in the court below.

Pendleton and Shearn, JJ., concur.

Judgment reversed, with costs, -  