
    Elizabeth Woodward, Appellant, v. Robert Owen Jones, Respondent.
    (New York Superior Court—General Term,
    December, 1895.)
    1. Landlord and tenant—Liability or landlord to repair roor.
    Where the lease expressly excepts the roof from repairs required to be made by the tenant, and provides that no improvements, or alterations shall be made without the landlord’s written consent, the duty of keeping the roof in repair rests upon the landlord and he is liable for injuries caused by-his failure to perform shell duty.
    
      2. Same — Damages.
    Where the landlord fails to keep the roof in repair, the tenant may recover the damages to his property caused thereby.
    Appeal by plaintiff from judgment entered on .verdict in favor of defendant, and from order, denying motion for new trial.
    
      Adams & Hyde, for appellant.
    
      Jeroloman & Arrowsmith, for respondent.
   McAdam, J.

The action was-to recover $166.67 rent for November, 1892, of premises No. 225 Eighth ■ avenue, under a written lease thereof to the defendant for three years from Hay 1,- 1892. The defendant set. up a counterclaim of $14-9.55 for damages caused to his goods by reason of the roof being in a dilapidated and leaky condition. The jury found for the defendant, and awarded Mm, over and above the plaintiff’s claim for rent, $259.55.

The evidence sufficiently establishes that the defendant’s goods were damaged by rain coming through the roof; that the plaintiff had timely notice of the defect; that the defendant did all he could to prevent injury, and that the actual damages amounted to as much as the jury; allowed. The question as' to liability arises under the covenants of the lease.

The tenant covenanted to make all repairs, “ except to the roof,” thereby expressly negativing any implication that he assumed any responsibility whatever in regard thereto. The Duke v. Ellis, 16 East, 352. All roofs require to be kept in order, and where the obligation to repair is not cast upon the tenant it. necessarily falls upon the landlord. In construing the contract it must be regarded as a whole, and one part is to be interpreted by another.

The lease contains these additional covenants: “ Wo improvements or alterations shall be made in or to the hereby demised premises without the consent of the landlord in writing.” * * * “ And the landlord or her agents shall be permitted, at any time during the term, to visit and examine the premises at any reasonable hour of the day.”

The evidence shows that the plaintiff had repaired the roof on previous occasionsthat in one instance she had paid for damages sustained by reason of the rain coming through it, •and that when she heard of the loss in question she expressed surprise that her agent had not attended to the repairs. These facts, coupled with the plaintiff’s admission and her expressly reserved right to visit and examine the premises, and the exemption of the roof from the repairs required to be pia-de by the tenant (Rauth v. Davenport, 60 Hun, 70), sufficiently show a mutual understanding-that the plaintiff was to take ■ care of the roof, and that the duty of doing so was upon her. The agreement, so established, in no manner conflicts with the terms of the lease, for it is in entire harmony with its evident intent.

The true measure of damages was applied. The rule is that where the repairs are trifling, and the damage by not making them -is large, it is the duty of the tenant to make them and charge the landlord (under his covenant to repair) with the cost. Cook v. Soule, 56. N. Y. 423 ; Walker v. Swayzee, 3 Abb. Pr. 136. Or the tenant may charge the landlord with the diminished value of the premises in consequence of the Want of repair (Myers v. Burns, 35 N. Y. 269; Cook v. Soule, supra; O’Connor v. Gouraud, 2 City Ct. 278; 3 N. Y. St. Repr. 555 ; Dorwin v. Potter, 5 Den. 306 ; Hexter v. Knox, 7 J. & S. 109; 63 N. Y. 561); that is, the difference in the rental value of the premises as they are and' as. they would have' been had the covenant been performed. Thompson-Houston E. Co. v. Durant L. I. Co., 144 N. Y. 34.

The exception to the rule is that a tenant is not bound to make permanent and important repairs, which the landlord was to make, but may seek his remedy by action or counterclaim to recover the damages. Thompson Co. v. Durant Co., supra. Retaining possession of the demised premises by the lessee is not inconsistent .with a remedy on . the covenant to repair- made by the landlord, and is' not a waiver, of the tenant’s right to claim damages for a breach. Id.

' The evidence shows that the roof was in a dilapidated condition, old and weather worn, and that the repairs required to make it safé were of a substantial character. Indeed, the alterations required might even be of that permanent nature which for some, reason the tenant by his lease is. forbidden tdmake.

In Phillips v. Ehrmann, 8 Misc. Rep. 39, the court held that in'a case, like this the measure of damages may embrace injury do'ne to the tenant’s property.

For these reasons the judgment and order appealed from must be affirméd, with costs.

Freedman and G-ildersleeve, JJ., concur.

Judgment, and order affirmed, with costs.  