(dissenting):
The_ premises were only rentable and suitable for saloon purposes, and it is apparent from that fact and the terms of the lease that they were leased for such purposes. ' Permitting gambling in the saloon was an unlawful act and in violation of the spirit of the lease. The plaintiff has lost the use 'of his premises for eleven months on account of such illegal use. It is true that when the lease was made a violation of its spirit by the tenant in permitting gambling upon the premises could not result in depriving them in the future of their valuable character as a saloon. The lease contemplated a saloon legally conducted under the Liquor Tax Law. The parties well knew that the provisions of that law- might be changed from time to time and new and different regulations placed upon the business, and other punishments or penalties visited upon the certificate holder'or the premises for the criminal violation of such laws. The amendment of which the defendant complains has not made unlawful that which was lawful at the time the lease was executed. (Liquor Tax Law, §■ 21 [formerly § 23], subd. I; Id. § 30 [formerly § 31], subd. E.)
It has simply added an additional punishment or penalty for an illegal act not warranted by the terms of the lease, and after such amendment was made the defendant, through its tenant, violated the statute and thereby disqualified and rendered the premises unfit for a saloon.
It is unnecessary to consider the various covenants in fche lease, for if the other, covenants are not sufficient to cover such misuse of the premises, it may well be held that by the illegal acts of the tenant, and the result naturally resulting therefrom, the premises have not been returned in as good condition *34as they "were in when taken, ordinary wear and damages by the elements excépted. That covenant must be construed with reference to . the known. character of the property, the purpose of the lease and the only business for which the premises were available. These terms in a léase usually apply to a physical injury to the 'property itself,' from the fact that ordinarily, aside from physical misuse and injury by the elements, the property at the end of the term would he in substantially the same condition as when taken. That ,covenant in this lease indicates that the tenant is to make good every injury to these saloon premises except those resulting from the different causes mentioned. The situation here is peculiar, and upon all the facts found I think the case may well rest upon the breach of that covenant. .
It is not necessary, therefore, to further consider whether the defendant under this lease is liable upon an implied covenant not to use the premises for an illegal Or extra hazardous purpose. The loss of eleven months’ rental has followed the illegal use of the premises as a direct consequence thereof, and the same should be borne by the party who has by misuse disqualified the premises for rental. I favor a reversal of ‘ the judgment and a new trial, with costs to the appellant to abide the event.
Judgment affirmed, with costs.