Carl E. Knutsen, Respondent, v. Teresa Cinque, Appellant

Carl E. Knutsen, Respondent, v. Teresa Cinque, Appellant. Second Department, June 15, 1906. Landlord and tenant — covenant to surrender in'good condition — no action thereon until termination of lease—when right of action passes to grantee. When a tenant covenants to surrender possession of the premises in as good condition as he took them, an action on the covenant dees not accrue until the expiration of the lease, for the tenant may repair the property within that time. Hence, a lessor who sells the premises subject to the lease prior to the termination thereof cannot recover for the breach of such covenant, as the right passed to the grantee. Appeal by the defendant, Teresa Cinque, from a judgment of the Municipal Court of the city of Mew, York in favor of the plaintiff, entered upon the verdict of a jury directed by a justice of the said-Court. - -v The action was after the termination of -a lease to recover the sum of $200 'deposited by the tenant with the landlord at the beginning of the tenancy, under a clause in the lease requiring that such deposit be made, to be held by the landlord during the tenancy- for the faithful performance -of the covenants of the lease. The covenant claimed by the defendant to have been violated was that requiring . the tenant to surrender the premises at the expiration of the lease in as good condition as he took them, wear and tear excepted. The defendant counterclaimed the damage to the freehold done by the tenant in -tearing"down horsestalls in the barn and not restoring them,- and proved the fact, and the damage. Seven months before the expiration of the lease'the defendant - sold and conveyed the property. Herbert Hindes, for the appellant. Isaac I. Miller, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The action did not accrue until the expiration of the lease, for the plaintiff could have restored the stalls.up to that time. It follows that the right of action set up- in the counterclaim'is in the defendant’s grantee. He purchased the land" subject to -the lease, and succeeded to his grantor’s rights, under the covenants of the-lease. The covenant to surrender the premises in as good condition as when received ran with the land (Demarest v. Willard[, 8 Cow.. 206 ; Chaplin on L. & T. §, 338). The judgment should be affirmed. Hirschberg, P. J., Hooker, Rich and Miller, JJ., concurred. Judgment of the Municipal Court affirmed, .with costs-.