John O. Baldwin, Respondent, v. Abraham Cohen and Barnatt Duberstein, Appellants

John O. Baldwin, Respondent, v. Abraham Cohen and Barnatt Duberstein, Appellants. Second Department, April 30, 1909. Landlord and tenant—eviction — section 197, Beal Property Law, construed— defenses—breach of landlord’s covenant to repair plumbing —Statute of Frauds—surrender of lease—counterclaim for injury to goods. Section 197 of the Beal Property Law, giving a tenant an option to quit and surrender possession, where the demised premises are destroyed or injured so as to be untenantable, has nothing to do with the law of eviction. Thus, it is no defense to an action for rent to show that a landlord refused to repair a water pipe which broke, as required by the lease, where the tenant retains possession of the property. The statute does not make such breach of covenant by the landlord a constructive eviction, nor is a fulfillment of the .covenant a condition of the tenant’s covenant to pay rent; Evidence in an action for rent examined, and held, that the question of the surrender by the tenant and acceptance by the landlord should have been submitted to the jury. Section 207 of the Real Property Law, requiring the surrender of a lease for a term of more than one year to be in writing signed by the tenant, does not apply if there be an actual surrender and acceptance. A tenant sued for rent cannot counterclaim for damages caused to goods by the breaking of a frozen water pipe, although the landlord failed to perform his covenant to make inside repairs to plumbing. Appeal by the defendants, Abraham Cohen and another, from a judgment of the Municipal Court of the' city of New York in favor of the plaintiff, entered upon the verdict of a jury. The action was for rent, and the trial justice directed a verdict for the plaintiff. Morris S. Hirschberg, for the appellants. Lewis C. Grover [Theodore Burgmyer with him on the brief] for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The learned counsel for the defendants claims that there was evidence of a “ constructive eviction ” which should have been submitted to the jury. He bases this on section 197 of the Real Property Law (Laws of 1896, ch. 547). But that provision has nothing to do with the law of eviction. It only changes a hard rule of the common law by giving a tenant the right or option to “ quit and surrender possession of the leasehold premises and thereby release himself for rent accruing after such surrender, where the “ building which is leased or occupied is destroyed or so injured by the elements, or any other cause, as to be untenantable and Unfit for occupancy ”, etc. In place of enlarging the law of eviction it does not provide for an eviction, but only confers an option to' quit and surrender on such injury or destruction of the building. Instead of being evicted, the tenant still has possession of the leased property, and it may be to his profit to continue to hold it. Now all that happened here was that a water pipe, in the leased premises burst from freezing, and the landlord refused to repair it, although there was a provision in the lease that the landlord should do the: inside repairs,. “including the plumbing”. The said statute does not cover such a case, nor does the law of eviction; nor was the keeping of the covenant to repair a condition to the covenant to pay-rent (Huber v. Ryan, 26 Misc. Rep. 428). But the defense of surrender and acceptance should have been submitted to the jury. When the defendant asked the plaintiff to repair the pipe he refused and told the plaintiff if he was not satisfied with that to move out, and the plaintiff told him he would move out, and he began to move out in about two weeks. While the moving was goings-on, the plaintiff came on the premises and told the defendant’s representative to clean up the place and send him the keys when the moving was over. This is according to the evidence for the defendant. The keys were delivered to the plaintiff and he made.no objection. Section 207 of the Real Property Law, which requires a surrender of a lease for a term of more than one year to be in writing and signed by the tenant does not apply. If there be an actual surrender and acceptance that suffices (Kelly v. Noxon, 64 Hun, 281; Chaplin on Landlord & Ten. chap. 29). The defendants were not entitled to counterclaim the damage to their goods (Reiner v. Jones, 38 App. Div. 441; Weinberg v. Ely, 114 id. 857). The judgment should be reversed. Woodward, Jenks, Burr and Rich, JJ., concurred Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.