
    MARGARET C. WOTTON, Appellant, v. CHARLES WISE, et al., Respondents.
    Before Sedgwick, Ch. J., and Russell, J. ■
    
      Decided December 30, 1880.
    
      Landlord and tenant—covenant to surrender in good condition, right of action on, when accrues—waste—waiver of by receipt of rent, &c.—improvements cannot be offset against.—Judge's charge, error in, how cured.
    
    Appeal by the plaintiff from a judgment entered apon the verdict of a jury.
    The action was against the defendants, as sureties, for breach of covenants of a lease made by plaintiff’s assignor to. the Progress Club.
    It was agreed in the lease that the club should keep the building and premises in good order, make all necessary repairs during the term, and it was “expressly agreed and understood that said party of the second part (the club), may make alterations and additions on the premises only upon the consent of the party of the first part, according to plans and specifications to be approved of and consented to by said party of the first part. . . . And at the expiration of the said term, the said party of the second part will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damage by the elements excepted.”
    The plaintiff claimed that alterations, to which neither she nor her assignor consented, in the internal arrangement of the house, by the removal of mantels, partitions, &c., of such a character as to be a breach of the covenants above quoted, were made.
    After reciting portions of the charge of the judge upon the trial, the court, at General Term, said : “It cannot be presumed that the lessor, by the mere fact of receiving the rent of premises from the lessee, knew that the lessee had been taking down partitions and removing mantel-pieces; and so the reception of the rent did not amount to an acquiescence on the part of the lessor in such alterations.
    “The manner in which alterations might be made was expressly agreed upon. If other alterations amounting to waste were made, the lessor might have had no reason to suppose the premises would not be restored before they were surrendered. This right of action on that covenant would not accrue until the termination of the lease. The mere reception of the rent during the term of the lease, could not amount to acquiescence in a waste, or in alterations in the nature of waste (Kling v. Dress, 5 Robt. 521; People’s Bank v. Mitchell, 73 N. Y. 406; Pike v. Butler, 4 Id. 360; French v. New, 28 Id. 147).
    “The error committed by the learned judge was not cured when, upon an exception being taken to this portion of his charge, he merely withdrew it, by consent of the defendant’s counsel (3 Graham and Waterman on New Trials). He ought to have correctly stated the true rule, so that the jury would not be misled.
    “ Alterations of partition's and removals of mantels,5 were waste or in the nature of waste (Keilway, 37 B. note 10 ; Dorr v. Jones, 4 B. and Ad. 126; 2 Rolle Abr. 815 ; Rolt v. Lord Summerfield, 2 Abb. Eq. 759 ; Taylor on Landlord and Tenant, § 348).
    “The defendants could not offset any benefits to the property against injuries by them in the nature of waste. That being so, the real question of damages was, how much the premises were injured by the unauthorized alterations which they had made, not whether the premises, by reason of their improvements, were of greater or less value than when let.”
    
      William H. Arnoux, for appellant.
    
      B. N. Huntingdon, for respondents.
   Opinion by Horace Russell, J.; Sedgwick, Oh. J., concurred.

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