The déóision on this motion determined only that the leased premises were untenantable before the fire that occurred on December 27, 1928, and that, the lease having been assigned, the defendant Could not and did not surrender the premises for the reason that they became untenantable because of the fire under the provisions of section 227 of the Real Property Law; and that, therefore, the defendant was liable for the balance of the rent reserved, taxes and water charges which had accrued and remained unpaid prior to the commencement of the action. The summary judgment Was partial only, and was based on the first cause of action.
*324•The second and third causes of action were based on covenants to keep the premises in repair and not to permit waste, damages being claimed for a breach of these covenants. These causes of action were severed from the first in the order granting summary judgment on the latter. The defenses and counterclaims in respect to these two causes of action have not been affected by the determination in respect to the first; and the plaintiffs do not make such a claim. In proving damages the plaintiffs must show the breach of the covenants by the defendant; and if they claim that the fire was caused by the defendant’s neglect and constituted a breach of the covenant, resulting in damages for which the defendant is hable, it will be competent for the defendant to offer proof to the contrary. There will be no question of res judicata.
The order and the judgment entered thereon should be affirmed, with ten dollars costs and disbursements.
Kapper, Hagarty, Carswell and Davis, JJ., concur; Lazansky, P. J., concurs in result.
Order and judgment unanimously affirmed, with ten dollars costs and disbursements.