The complaint in this action avers that the plaintiff is a resident of the county of Ulster, this State, and that the defendant is a foreign corporation doing business in the State of New York; that on or about the 3d day of April, 1908, the plaintiff and defendant entered into a written agreement for the rental of premises known as Nos. 1265, 1267 and 1269 Broadway, New York, for the term of sixteen years, to be used and occupied as a Turkish and Russian bath establishment, and “ which were then fully equipped for such use; ” that said premises were properly supplied with swimming pools, hot rooms, etc.; and that thereafter, and on or about the 23d day of February, 1910, a warrant was issued at the instance of the lessor, awarding possession of said premises to the defendant in this action, for holding over after default in payment of rent, said warrant issuing out of the Municipal Court of the City of New York; and that on or about the 25th day of February, 1910, the plaintiff was ousted from the said premises by the defendant; that the unexpired term of the lease mentioned herein, and under which the plaintiff held at the time *801of his dispossession, as set forth in the 5 th paragraph of the complaint, exceeded five years; that thereafter, and on or about March 24, 1910, plaintiff tendered to the defendant all rent in arrears at that time, with interest thereupon, and the costs and charges incurred by the defendant in the summary proceedings set forth in the complaint, and demanded possession of the premises described in the lease, but that said defendant absolutely refused to deliver possession of said premises to the plaintiff, and still refused to do so, and interfered with the plaintiff’s occupancy and enjoyment of the demised premises; that after dispossessing said plaintiff as aforesaid the defendant wrongfully and unlawfully, and with intent to injure the plaintiff and deprive him of his right to redeem or to regain possession of said premises in a condition to be used as a Turkish and Russian bath establishment, and to deprive the plaintiff of his right under said lease of further pursuing and maintaining said business in said above-mentioned premises, so formerly occupied by the plaintiff, destroyed or caused to be destroyed the swimming pools in such use at the time of such dispossession, with which the said premises were equipped, and such equipments were so destroyed that the said premises could not further be maintained and used for said business; that on or about the 20th day of July, 1910, plaintiff instituted a proceeding against the defendant in the Municipal Court to redeem said premises, and on or about the 2d day of August, 1910, an order was made awarding this plaintiff possession of said premises on payment of the amount stated therein, and said order was, on or about the 30th day of July, 1910, filed and entered in the office of the clerk of said court, and a copy of this order was duly served upon the defendant. (There is evidently some confusion in the dates above mentioned, but these may be disregarded.) The complaint then continues, that thereafter' and on or about the 3d day of August, 1910, the plaintiff, in pursuance of said order, tendered to the defendant the amount therein stated and fixed, and demanded possession of the premises, and that the defendant failed, refused and neglected, and still refuses to deliver the said premises to plain*802tiff, or permit plaintiff to secure possession of said premises, and plaintiff is still unable to obtain possession of said premises; that the rental value of the leased premises ever since such refusal to allow plaintiff to re-enter in possession of said premises or any part thereof, is $3,000 per month more than that provided for in the lease mentioned, and the plaintiff is damaged in the sum of $200,000 by reason of such refusal of said defendant to allow plaintiff to re-enter and take possession of said premises. The complaint then demands judgment for the amount of the damages alleged to have been sustained.
The defendant demurred to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action, and the learned court at Special Term, holding that the complaint was not changed in its essential elements from the complaint as it appeared upon a former appeal to this court (152 App. Div. 552), sustained the demurrer granting leave to the plaintiff to amend. This privilege not having been availed of, judgment has been entered dismissing the complaint, and from this judgment the plaintiff appeals to this court.
After a tenant is dispossessed his rent ceases. According to the opinion of Mr. Justice Woodward the landlord is nevertheless required to hold the property for one year in readiness for the use of the ejected tenant, in case he should elect to redeem. If chance should arise to relet the property meantime, he may not relet it if the needs of the new tenant require changes which will interfere with the use by the ejected tenant in case of redemption. For this denial to the landlord of the free use of his property he gets no compensation whatever, unless the ejected tenant within a year elects to redeem.
But the statute should not be so construed. The right to relet is expressly recognized by the statute itself, and the condition imposed that in case of redemption the new lease expires on the first day of the succeeding May. (See Code Civ. Proc. §§ 2256-2258.) The right to relet carries with it by necessary implication the right to make such alterations as are reasonably necessary to adapt the premises to the uses of the new tenant. The Legislature never intended to restrict the right of the landlord *803in the free use of his property in favor of the tenant ejected by his own fault during the one-year period in which the tenant was under no obligation to pay rent. This is a favor granted by the Legislature to the defaulting tenant. It certainly should not be held to extend to the confiscation of the property of the innocent landlord. If within the year the tenant elected to redeem he took the property as he found it, subject only to the right of the new tenant to remain until the succeeding May. The complaint, by the exhibits attached, shows that the premises were relet to a railway company. The alterations required to adapt a bathhouse to the use of a railway company would necessarily be radical, and would naturally render the premises unfit for a bathhouse. Where such alterations could lawfully be made as would destroy the practical use of the premises as a bathhouse it is not enough to state a cause of action to allege that such changes were wrongfully made, or made with vicious intent. It must be alleged further either that the new lease was not made in good faith or that the alterations made in the premises were unnecessary or inappropriate to the uses of the new tenant. No such allegations appear in the complaint. The defendant’s purpose in doing lawful acts is immaterial. While the complaint does not specifically state that such alterations were the acts alleged to have been unlawful, it shows that the dispossess warrant was signed on February twenty-fifth, and the new lease made only four days thereafter, and, as such alterations as were necessarily made for the purposes of the new lease would destroy the adaptability of the premises for a bathhouse, it may fairly be inferred that these were the changes claimed to have been made unlawfully and with wrongful intent.
Complaint is further made that after the order of the Municipal Court authorizing redemption the defendant upon demand refused to deliver to plaintiff said premises. It appears, however, that the larger part of the premises were in possession of the new tenant and defendant could not deliver possession. It is'not alleged that the part thereof remaining in defendant’s possession was demanded or possession thereof refused. Plaintiff was not entitled to thé possession of the property relet until the succeeding May, and after that his right to demand pos*804session was of the new tenant, and not of the landlord. (Gardner v. Keteltas, 3 Hill, 330.) The defendant has heen guilty of no wrong to plaintiff and is not liable to him for any damages whatever.
It does not follow that plaintiff has no remedy. Under the statute he may recover the property from the new tenant after the first of May after the redemption. If the property has been rendered "unfit for his use he still may be subrogated to the rights of the landlord in the new lease, as long as he pays to the landlord the rent reserved in his lease. (United Merchants’ Realty & Imp. Co. v. Roth, 193 N. Y. 570.) The complaint herein, however, does not allege any demand of defendant for any such rights, nor does it ask such relief.
When this action was before this court upon a prior appeal (152 App. Div. 552) we held that to the Municipal Court, which authorized the redemption, was given jurisdiction to determine the rights and liabilities of the parties, and that the terms imposed by its order should be conclusive of the rights of both parties. To this view we still adhere, and we deem that decision a controlling authority. I have been led to discuss the case from another standpoint, however, by reason of the learned opinion of my associate questioning the jurisdiction of the Municipal Court to determine the liability of the defendant. for the acts here complained of. Upon both grounds, therefore, this judgment'should be affirmed.
Lyon, J., concurred; Kellogg, J., concurred in result; Woodward, J., dissented in opinion, in which Howard, J., concurred.