
    Edmund Coffin, Appellant, v. The United Manufacturing Trimming Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1914.)
    Landlord and tenant — landlord’s entry upon leased premises — subject to exercise of police power — lease — when landlord entitled to recover rent.
    A landlord’s entry upon leased premises in compliance with an order of a city department to make repairs is not an eviction, nor the acceptance of a surrender.
    Leased premises are subject to the exercise of the police power of the state, and obedience to an order of a city department directing the landlord to make repairs is not a breach of nor will it discharge the tenant’s covenant to pay rent.
    The tenant, under a five years’ lease of premises to be used solely for the manufacture of cloak and - suit trimmings and buttons, agreed to promptly execute and comply with all rules, orders, ordinances and regulations of the city government and of any and all its departments and bureaus applicable to said premises. Sometime after going into possession, he began the manufacture of celluloid buttons. Subsequently the fire commissioner ordered the tenant to discontinue the use of the premises for the manufacture of celluloid buttons unless he complied with the regulations of the explosive commission, and the landlord, as owner, was required to install a sprinkler system throughout the building; also to make the doors, stairways, halls and rear fire escapes self-closing and to provide a fire proof passageway therefrom. After the landlord had contracted for the making of such improvement the tenant abandoned the premises. In an action to recover the rent for the succeeding month, held, that as the premises were unusable for one of the purposes contemplated by the lease though not specifically mentioned therein and were usable for the general purposes contemplated by the lease, plaintiff was entitled to recover.
    Appeal by plaintiff from a judgment of the Municipal' Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of defendant.
    Moen & Dwight, for appellant.
    Jacob M. Sehoenfeld, for respondent.
   Guy, J.

This action was brought to recover rent for the month of October, 1913, under a written lease dated November 4, 1908, whereby plaintiff’s assignors leased to defendant certain loft premises for five years, to begin February 1, 1909, the premises “to be used for the manufacture of cloak and suit trimmings and buttons, and for no other purpose.” The tenant agreed “ to promptly execute and comply with all rules, orders, ordinances and regulations of the city government, and of any and all its departments and bureaus applicable to said premises.” The defendant entered into possession of the lofts, which were located on one floor of said premises, and conducted therein from the beginning of the lease down to the latter part of September, 1913, a button manufacturing business, which included, among other things, the manufacture of celluloid buttons. The evidence shows that the manufacture of celluloid buttons by defendant did not begin until some time after defendant went into possession, but increased very largely during the succeeding years. It was not specifically mentioned in the lease. On May 1, 1912, defendant obtained a fire department permit to keep celluloid on the premises, which permit was revoked on August 12, 1913, an inspector of the fire department having officially reported that the business conducted in said premises, in the manufacture of celluloid products, was conducted in a way that constituted it a menace to surrounding property. On September 5, 1913, the fire commissioner issued an order that defendant should discontinue the use of the premises for the manufacture of celluloid buttons within five days unless the regulations of the municipal explosive commission were complied with. On September eleventh, defendant’s time to comply with this order was extended to October 1, 1913. On the same date two further orders were made by the fire commissioner requiring the owner to install a wet sprinkler system throughout the building, also to make the doors to stairways, halls and rear fire escapes self-closing, and to provide a fireproof passageway from rear fire escape to -Twenty-fourth street. The evidence shows that plaintiff, in compliance with said orders, entered into a contract for the making of these very extensive improvements on September 29, 1913, prior to- the date when the defendant-tenant abandoned the premises.

No sufficient proof of surrender and acceptance was offered by defendant.

It was well established that an entry by a landlord upon demised premises to comply with an order of a city department to make repairs therein is not an eviction nor the acceptance of a surrender. White v. Thurber, 55 Hun, 447, 448 ; Campbell v. Porter, 46 App. Div. 628 ; Markham v. David Stevenson Brewing Co., 51 id. 463, 465, 466 ; affd., 169 N. Y. 593.

All tenants hold the premises demised to them subject to the full exercise of the police power of the government. The exercise of an act of sovereignty by the government is not a breach of nor will it discharge the covenant of a lease for the payment of rent. Rawle Cov. Title, § 129 ; Legal Tender Cases, 12 Wall. 549, 550 ; Gallup v. Albany R. Co., 65 N. Y. 1, 5.

It is contended by the defendant-respondent that the building having become untenantable for the purposes stated in the lease, though through no default of the owner, the defendant was entitled, as matter of law, to surrender the premises, as he would had they become unusable for any purpose, as through destruction by fire. It is unnecessary, however, to consider this doubtful proposition, inasmuch as it is clearly shown by the evidence that the premises only became unusable for one of the purposes contemplated by the lease, though not specifically mentioned therein, and were usable for the general purposes contemplated, i. e., the manufacture of other kinds of buttons and of the cloak and suit trimmings as specified in the lease. Hardships resulting from acts of sovereignty, or the exercise of police power, must be borne by those affected thereby whether tenants or landlords, and must be deemed to ha.ve been in contemplation of the contracting parties at the time they entered into the contract of hiring.

Defendant having established no defense to plaintiff’s cause of action, the judgment must be reversed, with costs, and judgment ordered for plaintiff for $225 and costs.

Page and Whitaker, JJ., concur.

Judgment reversed, with costs.  