
    The Brunswick - Balke - Collender Company of New York, Appellant, v. George E. Wallace, Respondent.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Landlord and tenant — Rent and advances ■—• Rights and liabilities — Injury to, destruction, or untenantable condition of premises — Injury to or destruction of building by fire.
    Where a written lease provided that the rent should be payable monthly, in advance, but, if the premises were so damaged by fire that the landlord should decide to rebuild, the term should cease and the accrued rent be paid up to the time of the fire, and the premises were destroyed by fire on the tenth day of the month and the landlord decided to rebuild, the complaint, alleging such facts, in an action to recover the rent paid for that month less that portion covering the first ten days thereof, fails to state a cause of action.
    
      Appeal by the plaintiff from a judgment of the Special Term of the City Court of the city of ¡New York, sustaining a demurrer to the complaint.
    M. T. Corcoran, for appellant.
    Richards & Heald (Frank Sowers, of counsel), for respondent.
   Gildersleeve, J.

The complaint, briefly stated, alleges, among other things, that plaintiff was lessee of defendant under a written lease, annexed to the complaint, which lease provided, among other things, that the rent should be paid monthly, in advance, on the first day of each month; and the lease also contained the following clause: “ That the tenant shall in case of fire give immediate notice thereof to the landlord, who shall thereupon cause the damage to be repaired forthwith; but, if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease, and the accrued rent be paid up to the time of the fire.” The complaint further alleges that, on January 1, 1908, plaintiff paid, in advance, the rent for January; that, on January 10, 1908, the premises were destroyed by fire; that plaintiff gave due notice to the landlord of such fire; that the landlord decided to rebuild, and that, consequently, the term of the lease ceased on January 10, 1908. The plaintiff, therefore, seeks to recover the January rent, except that portion of it that covers the first ten days of-said month. The defendant demurred on the gTound that the complaint does.not state facts sufficient to constitute a cause of action, and the demurrer was sustained. Plaintiff appeals. -The statute (Laws of 1860, chap. 345) provides that lessees of a building which, without their fault, is destroyed or rendered unfit for occupancy by fire, shall not be liable for rent after such destruction or damage, “ unless otherwise expressly provided by written agreement or covenant,” and may surrender possession of such premises. In the case at bar, the rent was due and had accrued, under the terms of the lease, on January 1, 1908, ten days before the fire; and the lease provided that the accrued rent should he paid up to the time of the fire, as we have seen. While, under the circumstances shown, plaintiff was not liable for any rent accruing after the fire, it was liable for the rent that had already accrued up to that time, i. e., for the January rent payable in advance on January 1, 1908. The above mentioned provision of the lease is in no way inconsistent with the terms of the statute, but, on the contrary, is strictly in accordance therewith. As, by the terms of the lease, rent was to be paid in advance, the plaintiff came under an engagement to pay it on the day fixed; and it is not relieved from that engagement by the fact that the property was destroyed by fire ten days thereafter. See Werner v. Padula, 49 App. Div. 135; affd., 167 N. Y. 611.

Seabury and Lehman, JJ., concur.

Interlocutory judgment affirmed, with costs and with leave to plaintiff to plead over within six days, upon payment of costs in this court and in the court below.  