I agree with the appellant that the judgment in the former action i for rent is not a bar to this action, but that does not help-hirn.
By the covenants the defendant agreed “ to comply with all the regulations and orders of the Health, Police and Fire Departments, and also all the Municipal. Departments of'said City.” It also Contained a covenant “'to make all and every repair- .of every description whatsoever, both inside and outside of the- houses and ’ about the demised premises, and to the roof of the said buildings at his own proper' costs and' expense.” And at the expiration of the said, term to “ surrender the premises hereby demised, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.” ,
In- October, 1896, a portion of the foundation of the. building was defective, the southern gable Wall-was bulged, the first tier of beams and a part of the- partitions were rotten, and the building.was unsafe. A notice was served by the building department upon the plaintiff to that effect, and informing him. that unless he made the building . safe the building department would take it-tin hand. Thereupon the plaintiff called upon the defendant to make the repairs, which the defendant refused to do, upon the ground that they were extraordinary repairs, not called for- by the terms of tits lease. Thereupon the plaintiff made the repairs at an, expense of about $3,000, and this sum he now seeks to recover. At the close of the trial the court dismissed the complaint. .
*427I think this was right under the authority of May v. Gillis (169 N. Y. 330), where the lease contained a covenant, “ all insi'de and outside repairs to be made ” by the tenant, and it was there held that this only included ordinary repairs, and did not obligate the tenant to undertake a reconstruction of the building.
It will be noticed, therefore, that the question turns upon whether the repairs which the plaintiff seeks to compel the defendant to make were ordinary or extraordinary repairs; and as, considering their nature and extent, I think the latter, I dissent from the conclusion reached by the majority of the court, and think the case was properly disposed of in the trial court, and that the judgment appealed from should be affirmed, with costs.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.