Messer v. Smith

Per Curiam: Judgment and order unanimously reversed upon the law and new trial granted, with thirty dollars' costs to the appellant to abide the event. The rent under the terms of the lease was payable on the first day of May. When the defendant moved on the twenty-seventh of May, he was obligated to pay that rent. The only counterclaim which he interposed was for the return of the deposit. If the premises were rendered untenantable by the fire, the landlord had a reasonable tune within which to repair the same. At the expiration of such reasonable time, if the landlord failed to make the repairs, the tenant could leave the premises (Nimmo v. Harway, 23 Misc. 126), but, since he waited until after the rent was due, he must pay the rent for the full month. (Progress Corporation v. Chassman, 188 N. Y. Supp. 406.) It was, therefore, error to allow the plaintiff any deduction for the days in May when he was not in possession. Moreover, there was no proof that the deposit which he made under the lease ever came into the possession of the plaintiff. The judgment, therefore, in defendant’s favor for the amount of the deposit was not warranted. (Fallert Brewing Company, Limited, v. Blass, 119 App. Div. 53.) Present: Cropsey, Lazansky and MacCrate, JJ.