
    Joseph Meeks et al., Ex’rs, etc., Resp’ts, v. Julia A. Ring, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Landlord aniS tenant—Implied warranty in lease.
    There is an implied warranty in the letting of a house that the condition of the premises shall remain substantially the same between the time of the execution of the lease and the beginning of the term, otherwise the landlord would not be in a condition to tender for occupation that which had been hired.
    
      % Same—When term commences.
    Where the habendum of a lease was “ to have and to hold from the first day of May,” and it was further provided that the rent should be payable on the first days of May, etc. Held, that the term commenced on and included the first day of May.
    
      Appeal from judgment entered upon verdict directed in favor of plaintiffs.
    
      G. W. Cotterill, for app’lt; J. B. Beed, for resp’ts.
   Van Brunt, P. J.

In March, 1884, the plaintiff leased to the defendant by a written indenture of lease the premises 136 Madison avenue, for the term of three years from the first day of May, 1884. This lease contained a provision that in case the premises leased should be partially damaged by fire and not rendered wholly untenantable, the same should be repaired with all speed at the expense of the plaintiff. But in case the damage should be so great, as to render the premises untenantable the rent should be proportionately paid up to the time of such destruction, and from thenceforth should cease until such time as the ' same should be put in good repair.

Prior to twelve o’clock on the 1st of May, 1884, a fire occurred on the premises by which they were more or less, damaged, according ,to the testimony of the defendant to. such an extent that they could not be occupied by her and which she testified was admitted by the plaintiff; but according to the plaintiff such injury was slight, and although it required repairing yet still it would not have interfered with the occupancy of the premises by the defendant. The defendant having refused to take possession this, action was brought to recover for the first quarter’s rent. The defendant resisted the claim and upon the trial a verdict was directed, in favor of the plaintiff.

In the disposition of the case we are somewhat embarrassed by the fact that there was no request to go to the jury and that both parties insisted' upon a direction. The court granted the motion of the plaintiff and this was duly excepted to by the defendant. Although there is no implied, warranty in the letting of a house that it shall be reasonably fit for habitation or any other purpose for which it is let, yet there is certainly an implied warranty _ that the condition of the premises shall remain substantially the same between the time of the execution of the lease and the beginning of the term. If this is not the. case then the landlord is not in a condition to tender for occupation, that which is described in the lease and which has been hired.

Therefore if any material change has taken place during this period it is clear that the tenant is not bound to take-possession as the premises tendered are not those hired.

In the case at bar there was evidence tending to show that the premises because of the fire were unfit for, the purposes for which the defendant hired them to the knowledge of the plaintiff; and that this was conceded by the lessor.

If this was true and this changed condition occurred prior to the commencement of the term the lessee was not bound to take possession of the premises as they were not in the condition in which they were when she executed the lease. It is true that this evidence is contradicted on the part of the plaintiffs; but this contradiction would not under such circumstances justify a direction in their favor there being this conflict of testimony.

The covenant in the lease in regard to repairs to which attention has been directed is referred to as applicable to the case at bar; and that because the premises were not rendered wholly untenantable, the rent was. not suspended and the defendant was bound to take possession. It is apparent from a reading of the lease that this covenant has no application to any period of time prior to the commencement of the term, as the provision of the lease is that in case the damage shall be so extensive as to render the premises untenantable, the rent shall be proportionately paid up to the time of such destruction and shall from thenceforth ■cease until such time as the same shall be put in good repair. The damage by fire here referred to is clearly a fire occurring during the term and can have no application to damage which has occurred before the commencement of the term.

The real question, presented therefore is when did the term commence under this lease ? It has been held since the cases of Thornton v. Payne (5 Johns., 74), and Wilcox v. Wood (9 Wend., 346), that a lease of premises from the first of May, in one year to the first of May in the succeeding year excludes the first day. But the true rule seems to have been laid down by Lord Mansfield, in Pugh v. The Duke of Leeds (2 Cowper, 714), which was “ that the words ‘ from a day’ may either include or exclude that day according to the context and subject matter/’ and the court will construe it so as to effectuate the intentions of the parties and not to destroy them. In a comment upon this decision it has been suggested that it is at least singular that the same court which decided the case cited, but three years before gave an opposite judgment upon almost precisely the same state of facts. Doe v. Watton, 1 Cowper, 189. The later judgment, however, should be considered as the binding one approved as it has been in the case of Ackland v. Lutley (9 Adolphus & Ellis, 879).

Applying this rule to the case at bar, it will be seen that it undoubtedly was the intention of the parties that the term should commence on the first of May. The habendum of the lease was “to have and to hold * * * from the 1st day of May, 1884, for and during and until the full end and term of three years thence next ensuing, and fully to be complete and ended.

The rent was provided to be paid in equal quarterly payments in advance, to wit: on the first days of May, November, August and February in each and every of said years.

This language clearly indicates that the rent was to be paid at the commencement of each quarter, the first payment being coincident with the commencement of the term. That the term was understood to commence on the first day of May is also indicated by the acts of the parties, as the lessee expected to take possession on that day.

Under these circumstances it must be held that the term commenced on the first of May, and the fire occurring during-the term covered by the lease, the rights of the parties must be governed by its provisions in respect thereto. The damage was not of a character to absolve the tenant from, the payment of rent under the lease, and consequently,, although it seems a hard case for the appellant, the respondent was entitled to a recovery in this.action.

The judgment should be affirmed, with costs.

Macomber, and Brady, JJ., concur.  