. The'.action is brought to recover certain arrears of rent secured to be-paid by the terms of a written lease. By the provisions of the lease the yearly rental secured to be paid was- the sum of. $600, payable, in instalments of $100 each upon, .the' first days of. April, May, June, July,'August and September, respectively. . It was. conceded, and the court found,, that the. rent, for the months of May, June, July, August and September, 1893, was wholly unpaid, for which sum judgment, with interest, was awarded to plaintiff. It appeared upon the. trial that the - buildings, upon the premises were wholly destroyed by fire on the 16th day of September, 1893.. The lease contained a covenant that “ in case of the total destruction of the premises by fire or otherwise the rent shall be paid up to the time-of said destruction, afid then and from- thenceforth-this lease shall cease and come to an end, provided, however, that such damage or destruction be not caused by the carelessness, negligence or improper conduct of the party of the second part, his agents or servants.” The parties themselves having provided by this covenant against the contingency, of destruction of the premises by fire, it furnishes the measure of defendant’s exemption from 'liability and the statute. (Laws of 1860, chap. 345) has no application. If it did, the rule, which is decisive of the case, would not be thereby changed, for in substantial respects the statute and the covenant are the same. The total destruction of the buildings alone did not have the effect of exempting the defendant from the'payment of rent, because such destruction must have taken' place without the concurrent carelessness, negligence or improper conduct of the defendant. This is the terms of the covenant and also the provision of the statute. In order that defendant be relieved from, payment he must bring him*285self within the terms of the contract under which he claims to be relieved, otherwise he is under both a contract and a common-law liability to pay. Defendant neither alleged in his answer nor offered proof upon the trial to show that the fire was occasioned through no fault of his, in consequence of which a case was not made for exemption from liability. There was nothing before the court upon which it could so find. The right of action under the lease survived the fire, and plaintiff could maintain an action thereon for. the rent. (McGregor v. Board of Ed'n of City of N. Y., 107 N. Y. 511; Roe v. Conway, 74 id. 201.)
The judgment should be affirmed, with costs.
All concurred, except Cullen, J., not sitting.
Judgment affirmed, with costs.