
    Jacob J. Van Buskirk, Resp't, v. Robert W. Gordon, Jr., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    1 Landlord and tenant—Abandonment op premises by tenant.
    Where there is no agreement in a lease to repair, no obligation rests upon the landlord to do so, and under such circumstances the necessity for repairs will not justify the tenant in abandoning the leased premises.
    2 Same—Landlord may lease abandoned premises.
    The fact that the landlord rented said premises, and realized some rent therefor after they were abandoned by the tenant and reduced his liability, was no ground of defense.
    Appeal from, a judgment of the county court of Richmond county affirming the judgment of a court of a justice of the peace.
    The defendant was a tenant of the plaintiff under a verbal lease, for a year. He hired the premises in October, 1881, and lived there until July, 1885, and agreed to pay $300 a year rent. This is admitted. The defendant claims that he" surrendered the premises August 1, 1885, and that the landlord accepted the same. The plaintiff denies that he accepted the surrender, and alleges that the defendant abandoned the premises; that in September he let the premises on account of the defendant, and this suit is brought to recover the deficiency between the amount which the landlord received on the reletting and that which defendant agreed to pay. There is no pretense that the landlord agreed to accept the surrender, but that there was an implied acceptance on his part. As the cause for such surrender, the defendant alleges that the house was untenantable and unfit for occupation, because the same was infested by bed bugs. This was suddenly discovered by the defendant, June 19, 1885, after he had lived in the house with his family nearly four years. On that date he writes to the plaintiff as follows: “On my arrival home this evening, I was very much annoyed to find that my wife had discovered that the house was in a most filthy condition, caused by the presence of bed bugs,” etc., and asks that the walls of three rooms be replastered. The next day, June 20, without having received any answer from the plaintiff, or even giving him time to reply, he writes another letter, giving notice of his intention to sur ■ render the premises on August 1, 1885. The defendant moved before August 1, 1885, and sent the keys to the plaintiff in an envelope. The plaintiff then sued for the August rent, recovered judgment against the defendant, which judgment has been paid. In August, plaintiff relet the premises for the month of September, on account of defendant, at the best price he could get at that time of the year, which was five dollars a month less than defendant had agreed to pay, which letting continued from month to month until the end of the year. In October he requested defendant to pay the deficiency in the rent, which he refused to do, and at the end of the year sued the defendant for the total amount of such deficiency.
    
      Theodore J. Geisler, for app’lt; William M. Mullen, for resp’t.
   Dykman, J.

This is an appeal from the judgment of the county court of Richmond county affirming the judgment of a court of a justice of the peace.

The action was for the balance due for the rent of certain premises leased by the plaintiff to the defendant and which he abandoned before the expiration of his term.

An effort was made upon the trial to justify the abandonment of the premises by reason of the necessity for repairs thereon, but there was no agreement to repair, and so no •obligation rested upon the plaintiff to do so.

The surrender of the premises was not accepted by the plaintiff, and the fact that he rented the same and realized some rent therefor after they were abandoned by the defendant and so reduced his liability, was no ground of defense, and was beneficial to the defendant.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  