Pesach Weinberg, Appellant, v. Smith Ely, Respondent

Pesach Weinberg, Appellant, v. Smith Ely, Respondent. Second Department, July 24, 1906. Landlord and tenant — covenant to repair damage caused by fire — when tenant not entitled to recover for damage to goods by rain. A tenant under a lease providing that damages to the building by fire shall be repaired at the expense of ihe landlord is, nevertheless, under an obligation to protect his goods from damage by rain after the roof has been damaged by fire, and if he failed to do so is entitled to nominal damages only. Moreover, such covenant does not require the landlord to make the repairs, but only to pay the expense thereof, Appeal by the plaintiff, Pesach Weinberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Richmond on the 3d day of January, 1905, upon the verdict of a jury for nominal damages rendered by direction of the court, and also from an order entered in said cleric’s office on the 8th day of December, 1905, denying the plaintiff’s motion for a new trial made upon the minutes. The action was for damages to a tenant by breach of contract to repair by a landlord. The defendant let an entire building of five stories to the plaintiff’s assignor by a written lease for a term of three years. The lease provided that if the building “ shall be partially damaged by fire, the same shall be repaired as speedily as possible at the expense of the * * * party of the first part ” (the lessor), and that if the damage should be “ so extensive as to render "the building untenantable,” the rent should cease until the building was repaired. The tenant occupied the building for business purposes. A fire entirely destroyed the roof and also burned holes through every floor. Next day the tenant notified the landlord of the damage to the building. The fire was on February 15th, and on February 21st there was a heavy rain which damaged th<\ tenant’s goods in the building. Neither landlord nor tenant had made any repairs in the meantime. The court excluded all evidence of damage to the tenant’s good, by the rain. The plaintiff thereupon asked to withdraw a juroi The court refused, and directed a verdict for the plaintiff for six cents. The plaintiff offered evidence of no other damage. Abraham B. Schleimer, for the appellant. Henry W. Simpson, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: Counsel for the appellant persisted on the argument in criticising the summary disposition of the case by the learned trial judge as arbitrary, and the like. Such criticism was unfounded and out of place. It was for the tenant to protect his goods after the fire by covering them, moving them out, or by making the repairs himself at the landlord’s expense. The law did not tie his hands. The law. is not that he could neglect his goods, and recover of the landlord for damage done to them by the landlord’s neglect to repair (Cook v. Soule, 56 N. Y. 420). Nor did the lease bind the landlord to repair; it only provided that the repairs should be done at his expense. The j udgment and order should be affirmed. IIirschberg, P. J., Woodward and Hooker, JJ., concurred. Judgment and order affirmed, with costs. ‘