Einstein v. Tutelman

Giegerich, J. The action was brought to recover the sum of $541.67, the amount claimed by the plaintiff to be due as rent for the month of May, 1907, from the defendants as tenants, for premises occupied by them. The answer sets up as a partial defense that, on the 6th day of May, 1907, the premises were damaged by fire and rendered untenantable, and so continued for a period of fifteen days, up to May 21, 1907. After the action was commenced the defendants tendered to the plaintiff the sum of $300, with costs up to the time of such tender. The jury brought in a verdict in favor of the plaintiff for $289.34, which the plaintiff insists is inadequate. The first point to be considered is whether, under the provisions of the lease in suit, the tenants are entitled to any allowance for the period during which the premises were rendered untenantable. The clause of the lease dealing with the point is as follows: “And it is further agreed between the parties to these presents that in ease thg building or buildings greeted on [464] the premises hereby leased shall be partially damaged by fire the same shall be repaired as speedily as possible, at the expense of said party of the first part; that in case the damages shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair; but in case the damage by fire or other elements shall amount substantially to the destruction of the building the rent shall be paid up to the time of such destruction, and then and from thenceforth thjs lease shall cease and come to an end; provided, however, that such damage and destruction be not caused by the carelessness, negligence, or improper conduct of the parties of the second part, their agents or servants.” On behalf of the plaintiff it is insisted that, as the rent sued for became due before the fire, the trial court should have granted his motion for the direction of a verdict for the full amount; citing Werner v. Padula, 49 App. Div. 135, and Craig v. Butler, 83 Hun, 2'86. In both cases cited the demised premises had been totally destroyed by fire, and the provision construed was that “ the rent shall be paid up to the time of such destruction, and then and from thenceforth the lease shall cease and come to an end.” The present case is not one of total destruction, but one where the damage was “ so extensive as to render the building untenantable;” and the provision is not that the lease shall cease, as is the fact in the event of a total destruction, but that “ the rent shall cease until such time as the building shall be put in complete repair.” The reason for the decision in the Werner and Craig cases is summed up in the following extract from the opinion in the former case, found at page 138, namely: “If by the terms of his lease rent is to be paid in advance, the tenant comes under an absolute engagement to pay it on the day fixed, and he is not relieved from that engagement by the fact that the property is destroyed by fire, and he is liable to pay the rent due in advance even though the destruction takes place on the very day it falls due.” I am of the opinion that, where the contract is not ter [465] minated, but left in existence, and the provision is merely that the rent shall cease, the fairer construction is to hold that there is to be an apportionment or abatement, according as the case may be. If, for example, the damage should occur on the last day of the month and the repairs be completed, say on the second or third of the following month, it is not reasonable to suppose that it was intended that the landlord should receive no rent for the entire month, merely because the day on which the rent became due happened to fall in the interim while the premises were untenantable. On the other hand, it is no more reasonable nor fair to the tenant to hold that, in the case of a continuing contract, where the premises are rendered untenantable on the first day of the month and remain so throughout the month, he should be held liable for the entire month’s rent. This hardship, either upon the landlord or upon the tenant, dependent wholly upon chance, would be even greater in the cases, of which there are many, where the year’s rent is paid quarterly; in which event it is conceivable tha.t the landlord might lose a quarter’s rent, although the premises might be untenantable only for a few days; or, on the other hand, the tenant might lose the beneficial use of the property for substantially an entire quarter, and still have to pay full rent. This judgment in favor of the plaintiff must, however, be reversed because of the failure of the jury to follow the proper instructions of the court as to the number of days’ deduction to which the defendants were entitled under the construction of the lease as above set forth. Bigelow v. Garwitz, 15 N. Y. Supp. 940; 40 N. Y. St. Repr. 580; Kaplan v. Shapiro, 53 Misc. Hep. 606, 609. There is no dispute that the fire occurred on the sixth day of May and that the repairs were completed not later than Saturday, the eighteenth. One of the defendants’ own witnesses testified that they were completed on the seventeenth. At the request of the plaintiff’s attorney the judge charged the jury that the plaintiff was entitled to $18.05 per day for at least seventeen days. This charge was undoubtedly correct. [466] Assuming that the work was not finished until Saturday, the eighteenth, then rent recommenced certainly not later than Monday, the twentieth, making twelve days for the balance of the month, thus requiring only five days at the beginning of the month to make up the seventeen days mentioned in the court’s charge. Notwithstanding this, the jury returned a verdict for $289.34, instead of $306.85, which would have been the correct amount under the judge’s charge, thereby throwing the costs upon the plaintiff under the defendants’ offer of judgment in the amount of $300 above referred to. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.