
    FEINSTEIN et al. v. GOTTFRIED.
    (Supreme Court, Appellate Term.
    December 20, 1907.)
    Landlord and Tenant—Rent—Liability—Injury by Fire.
    Where a tenant continued to hold possession of the leased premises notwithstanding the occurrence of a fire thereon, such fire was no defense to his liability for rent.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 777, 778.]
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Ida Feinstein and another against Elias Gottfried. From a Municipal Court judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.
    Argued before GILDERSLEEVE, P. J., and McCALL and FORD, JJ.
    Samuel Plumer, for appellants.
    Leo Schafran, for respondent.
   PER CURIAM.

This judgment must be reversed. The record shows that there was a fire upon the premises and some destruction necessarily ensued. Without further comment upon that feature than to say that the defendant seemingly was given to exaggeration of conditions produced, it was without doubt proven that the tenant maintained possession and never left the premises. He. cannot keep possession and refuse to pay rent. He must give up one or the other. Having in this case kept the possession, he must respond in compensation therefor, and there is nothing in the lease that makes this conclusion inconsistent with its terms.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.  