Marie Friedlander and Isaac N. Spiegelberg, as Executors, etc., of Albert Friedlander, Deceased, Respondents, v. Nathan Citron and Herman Citron, Copartners Doing Business as Citron Brothers, Appellants

Marie Friedlander and Isaac N. Spiegelberg, as Executors, etc., of Albert Friedlander, Deceased, Respondents, v. Nathan Citron and Herman Citron, Copartners Doing Business as Citron Brothers, Appellants. First Department, November 4, 1910. Landlord and tenant — lease construed — destruction of portion of building by fire — liability for rent after repair by landlord. Under a lease of a loft at the top of a building providing that if the leased premises are injured hy fire so as to render them untenantable the rent shall cease until such time as the premises shall be put in good condition by the landlord, but in case of the destruction of the building by fire or otherwise so as to render it necessary to rebuild the same the lease shall end, the landlord, on repairing the loft which was injured by fire'so as to become untenantable, may hold the tenant for rent from the date the repaired premises were tendered. Under such lease the tenant cannot surrender possession and terminate the lease under the authority of section 227 of the Real Property Law, for the agreement provided that rent should cease only during the time necessary for the landlord to put the premises in good repair. , The words “ destruction of the building by fire ” do not mean the destruction of the loft, but the destruction of the entire building. Appeal by the defendants, Hathan Citron and another, copartners, etc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of April, 1910, reversing an order of the Municipal' Court of the city of New York, entered on the 20th day of December, 1909, which vacated and set aside the verdict of a jury in favor of the plaintiffs rendered by direction of the court in an action for rent. Benjamin E. Messler, for the appellants. Isaac H. Levy, for the respondents. [MAJORITY — Miller, J.:] Miller, J.: The defendants were lessees of the top loft of the plaintiffs’ building. The lease contained the following provision, viz.: “If the premises hereby leased shall be injured by fire or otherwise hut not rendered untenantable the same shall he repaired with all proper speed at the expense of the lessor; but if the damage shall be so extensive as to render the premises untenantable the rent shall be proportionately paid up to the time of such damage and shall from thenceforth cease until such time as the same shall be put in good repair; hut in case of such destruction of the building by lire or otherwise as . to render it necessary to rebuild the spine, and upon the payment of the proportional rent up to the time of such destruction, then and from thenceforth this lease shall cease and come to an end.” On the 16th of Jnly, 1908, afire occurred in said loft which nearly destroyed, hut did not get below, it. The defendants remained in possession, using their offices for two or three weeks thereafter, and then removed therefrom, and later removed their machinery on account of the repairs that were being made. On the fifteenth of September the plaintiffs notified the defendants that the premises wo.uld be ready for occupancy on October 1,1908, to which defendants replied, in effect claiming that by the terms of the lease it had terminated by reason of the fire rendering the premises untenantable. This suit is to recover the October rent, which was due October first. We have considered the many reasons urged by the appellants for the reversal of the order appealed from, hut deem it necessary to refer herein to hut one. It is urged by the appellants, first, that the word “ building ” in the lltli clause of the lease, above quoted, means “ demised premises,” and lienee that the lease was to terminate upon the destruction of the demised premises ; and, second, that if tlie word' “ building ” is to be read in its usual sense, the lease does not provide for the contingency which happened, i. e., the destruction of the demised premises, and that, therefore, the statute (Real Prop. Law [Gen. Laws, chap. 46 ; Laws of 1896, chap. 547], § 197; re-enacted by Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 227) applies. That section of the statute is as follows : “ Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause, as to be untenantable and unlit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises and of the land so leased or occupied ; and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender.” No doubt the statute applies unless the agreement expressly provides to the contrary. But the agreement provides for three contingencies : (1) Injury not rendering the premises untenantable; (2) damage (meaning, of course, injury) so extensive as to render the premises untenantable; (3) destruction of the building. We think that the word “ building ” is to be given its ordinary meaning. The lease plainly contemplated that, in case of the destruction of the building (and the consequent lapse of time necessary to rebuild) the tenant should-not be required to wait until it could be rebuilt; and, indeed, that the landlord should not be obliged to rebuild a similar building, but that, upon the happening of that contingency, the lease should terminate. However, the second contingency is what happened. The demised premises were rendered untenantable. In such case the statute would apply if the lease had not expressly provided that “ the rent * * shall from thenceforth cease until such time as the same shall be put in good repair,” which, of course, means that the rent should cease only until that time. Having provided by contract for the contingency that happened, the contract must govern. The determination should be affirmed, with costs. Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred. Determination affirmed, with costs.