Emma P. Lockrow, Executrix, etc., Respondent, v. Patrick K. Horgan, Appellant

Emma P. Lockrow, Executrix, etc., Respondent, v. Patrick K. Horgan, Appellant. (Argued May 27, 1874; decided June 19, 1874.) This action was brought to recover rent and for repairs, also for improvements put upon the demised premises by defendant (the tenant) and removed by him. The lease contained a covenant on the part of defendant to make such improvements as he might require, also to make all necessary repairs and to keep the same in tenantable order at his own cost, and to leave all the improvements upon the premises at the expiration of the lease. The defence was, that the premises became untenantable because of the settling of the rear wall of the building, owing to the original defective construction of the foundation, and defendant had therefore abandoned them. He claimed that his covenant to repair did not cover such a defect, and that under the statute (chap. 345, Laws of 1860) the premises having thus became untenantable he was exonerated from the payment of the rent. Held, that, as the covenant was absolute to make all necessary repairs and keep the premises in tenantable order, and no fraud on the part of the landlord having been shown, defendant was bound to make the repairs irrespective of the cause of the defect, and defendant having abandoned the premises without making the repairs the landlord had a right to make them and recover the expenses ( Ward v. Kelsey, 38 N. Y., 80); that it being’by his own fault that the premises had become untenantable, he was not exonerated from the payment of rent; also that he was liable for the value of the improvements removed. (.Bullock v. Bommett, 6 Term, 650; Auworth v. Johnson, 24 Eng. C. L., 298 ; Beach v. Orain, 2 N. Y., 86; Myers v. Burns, 35 id., 269.) The lease also contained a clause that defendant should surrender the premises at the expiration of his term in as good condition as at the commencement, reasonable use and wear and damages by the elements excepted. Held, that this did not so qualify the preceding clause as to excuse defendant from repairing the wall; that the only exemption intended was in respect to the wear of the premises and injuries by the elements, and the settling of the wall could not be attributed to either. Samuel Hand for the appellant. Warren G. Brown for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.