The defendant in this action was the lessee of one of the first flats in the apartment house at 516 and 518 Washington avenue, Brooklyn. His lease term was from May 1,1902, to May 1,1903, and he undertook to pay forty-five dollars monthly in advance for the leased premises. The rent for the month of February, 1903, had been paid) About midnight of the nineteenth day of February a fire occurred upon the roof .of the apartment house. There were three floors above those occupied by the defendant, and it seems to be conceded that no damage from the fire resultedyo the defendant. By reason; however, of the water used in extinguishing the fire, the building, was flooded, and the evidence is sufficient to support the fact, necessarily found in the decision < of the 'learned justice of the Municipal Court, that the premises became untenantable, because of' tlie'presence of this water. ,The defendant moved out. of. the flat, and this action is brought, to recover two. months’ rent of the premises (for March and April, 1903), less forty-eight dollars, and eighty-four cents rent insurance money received by the landlord for thirty-three days’ period of repairs which the landlord was willing to. allow to the tenant. The court below dismissed the complaint upon the merits, and the plaintiff appeals to this court.
Section-197 of the Real Property Law (Laws of 1896, chap. 547) provides'that “ 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 unfit for occupancy, and no express agreement to the contrary has been made in writing, the - lessee or occupant *451may, 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.” The defendant, under the facts fairly established by the evidence, was justified in holding the flat in question to be untenantable and unfit for occupancy; it was in evidence that the water stood several inches deep upon the floors; that the plastering fell off, and generally that the premises were in such a condition that a prudent person would hardly care to remain in the rooms, and the fact that the plaintiff does not contend that the repairs had been made and the fiat put in condition for occupancy for over one month, for which ttime he was willing to rebate the rent, is sufficient to justify the removal.
The only remaining question is one of law, whether the provisions of the lease were such as to take the case out of the statute enacted for the benefit of tenants. There is only one clause in the lease which has any bearing upon this question, the provisions in reference to ordinary, repairs having no relation to the special conditions resulting from the fire, and that is clause 4, which provides that • “ the tenant shall, in case of fire, give immediate notice thereof to the landlord, who shall thereupon cause the damage to be repaired as soon as reasonably and conveniently may be, but if fhe premises be so damaged that the landlord shall decide to rebuild, the term shall cease, and the accrued rent be paid up to the time of the fire.” This clause of the lease is undoubtedly a covenant on the part of the landlord to repair all damages occasioned by fire when his attention is called to the same, and to this extent is a modification of the general covenant on the part-of the lessee to make ordinary repairs. In so far as damages by fire are concerned, the parties have entered into a written agreement which overrides. the statutory provisions within the rule recognized in the case of Butler v. Kidder (87 N. Y. 98). While it is true that in the case now before us the damage Was done by the water used in extinguishing a fire which occurred in another flat under the same roof, we are of opinion that this contingency was fairly within the contemplation of the parties, and that they intended to provide for just such a case as has arisen. The rule is well established that in policies of fire insurance the *452company is liable for damages to the insured property due to the use of water in extinguishing the fire (New York Express Co. v. Traders' Ins. Co., 132 Mass. 377, 381), and it seems reasonable that when the parties contracted with reference to fires they intended to embrace the incidental consequences of a fire occurring in the building in which the demised premises were located. If this is the true construction to be put upon the contract, it follows that the case is taken out of the control of section 197 of the Real Property Law, and that the landlord was entitled to recover the rent reserved, less the allowance which he was willing to make for the time the premises were undergoing repairs.
The judgment appealed from should be reversed, with costs.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.