I agree with Mr. Justice Laughlin that the case was tried upon an entirely erroneous theory as to the measure of defendant’s liability, and that there must be a new trial. I do not agree with him, however, that under the terms of the lease in question the burden lay on the landlord to show what part of the necessary repairs the tenant should have made, but did not. That rule may be proper enough in the case of a lease where the tenant’s obligation goes no further than that he will “quit and surrender the premises in as good state and condition as *571reasonable use and wear thereof will permit,” because in such a case a certain amount of deterioration is plainly contemplated as a matter for which the tenant is not to be liable.
Nothing of the sort appears in the lease which we are now considering. The tenant’s obligation is absolute and unqualified. He is required to “put, keep and maintain the said wharf property and every part thereof, and the structures thereon or to be erected thereon, or any structures erected under the provisions of this lease, in good and sufficient repair and condition, and that all such repairs during said term shall be done at ” the tenant’s sole cost, charge and expense. It is not easy to see how more plain and comprehensive language could have been used, or where there is room for differentiating between repairs which the tenant should have made and those which he was not called upon to make. Certainly I can find nothing in the terms of the lease to limit the tenant’s obligation to the surface and exterior of the pier and those parts which he could conveniently reach and repair. The pier was built in 1890, and from that time until 1911 the defendant was the sole tenant holding part of the time by written leases and part of the time without such leases. His rental was apparently very moderate, and it is not unreasonable to hold that the parties intended, as the language of the lease reads, that defendant should maintain- the whole pier in good condition, making from time to time such repairs, and even replacements, as would keep the pier and every part of it “in good and sufficient repair and condition ” so that at the end of the term the city should receive back a usable pier, and not a wreck which required nearly as much to put it in good condition as it originally cost to build. That this was the purpose with which the lease was made appears very clearly from the provision “that if by reason of total or partial destruction, through fire, floating ice, collision or the action of the elements, the wharf property hereinbefore described shall require to be rebuilt, the same shall be so rebuilt under the direction of the board of docks, in like manner and similar to the wharf property destroyed, by and at the expense of the ” tenant. Here the defendant agreed to rebuild the whole pier, if necessary, if destroyed by certain causes for none of which he could be held responsible. The purpose was, *572of course, that at the end of the term the city should receive back a completed and usable pier constructed according to its plans. It seems to me to be unreasonable to hold that it was intended to compel defendant to rebuild if the pier was destroyed wholly or in part by causes which he could not control, and to exonerate him from liability for a partial destruction resulting solely from his failure to comply with his covenant to “put, keep and maintain the said wharf property and every part thereof ” in good and sufficient repair and condition.
As it seems to me the defendant’s liability was established when it was shown that, at the expiration of the lease, the pier was not “ in good and sufficient repair and condition.” That fact proved that he had not complied with his agreement to put, keep and maintain it in the specified repair and condition, and left nothing to be determined except the extent of the necessary repairs and their fair cost. I see no room for a distinction between “ repairing ” and “ rebuilding ” under the terms of the lease and in view of the condition of the pier as defendant left it.
For these reasons I concur in the reversal of the judgment appealed from and the ordering of a new trial.
Clarke, P. J., and Page, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.