By the provisions of the lease between the parties the rent of the premises therein demised became payable on” the first day of each month in advance.
Plaintiff’s action was for the rent payable on the 1st day of May, 1907; and it is not disputed that, hut for the facts hereinafter stated, plaintiff would he entitled to a recovery.
Defendants, however, allege as a “ partial defense ” that, under the terms of the lease, it was agreed and" provided that, in case the building erected on said premises shall he damaged by fire so as to render the same untenantable, the rent shall cease until such time as the building shall be put in complete repair, “and that, on or about "the 6th day of May, 1907, the said premises were damaged by fire and were rendered untenantable and the said premises remained in such condition for a period of fifteen days from the date of such fire, to wit, from May 6th to May 21st, 1907.”
Defendants also allege a willingness to pay the amount of rental fixed in the lease for May, 1907, “less a sum of money equal to the rental reserved in said lease for fifteen days,” and ask for a dismissal of the complaint.
Under section 197 of the Beal Property Law, where no express agreement to the contrary has been made in writing,” the lessee or occupant of a building rendered.untenantable *467and unfit for occupancy, if without his fault or neglect, “ may quit and surrender possession of the leasehold premises and of the land so leased or occupied and is not liable to pay to the lessor or owner rent for the time subsequent to the surrender.”
Evidently, to overcome the effect of the statute which gives to a lessee the right to terminate the lease in the event of untenantahleness as therein provided, the lease in question provides, among other things, for the contingency of damage to the premises by fire, “ that, in case the damage shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair.” Reading this clause with one that immediately follows it, referring to a case of the destruction of the building by fire^ which provides, in that event, “ that the rent shall be paid up to the time of such destruction and then and from thenceforth this lease shall cease and come to an end,” it is evident that the latter clause is a practical reiteration of the provisions of the statute, while the former is designed to prevent the termination of the lease in the case of a condition of untenantableness, which may be overcome by repair, and to suspend the payment of rent during the period of repair.
Section 197 of the Real Property Law, which is a substantial re-enactment of chapter 345 of the Laws of 1860, was passed as a remedy against the injustice of the operation of the law as it stood prior to 1860, whereby a lessee was not relieved from the payment of the rent reserved in the lease of a building after its destruction, and where the benefits of the lease had been practically lost.
Tinder the statute, therefore, in the absence of any agreement to the contrary, where a building was rendered untenantable and unfit for occupancy by reason of a fire, a situation such as is claimed here by the tenant to have existed, the lessee might surrender possession of the premises and terminate the lease.
The parties, however, agreed in the lease that, in case of a partial damage by fire, the landlord should repair as speedily *468as possible and that, where “ the damage shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair.”
Precedent, for the precise situation here disclosed, seems to be lacking in this State. Authorities may be found where the question of the tenant’s liability to pay rent arose in a case where the lease provided for payment in advance, and where the fire occurred after the due date of payment and before the expiration of the month or term for which the rent was payable in advance, but where the tenancy became terminated by reason of the destruction of the premises.
Such a case is Werner v. Padula, 49 App. Div. 135; affd. on the opinion of the Appellate Division in 167 N. Y. 611.
The fire clause in the lease in that case was similar in all respects to the one in the lease before us. The tenant had surrendered the premises after their destruction by fire, and having paid the rent in advance he sought to recover for the return of the unearned rent from the date of surrender of the lease. It was held: “ If by the terms of his lease rent is to be paid in advance, the tenant comes under an absolute engagement to pay on the day fixed and he is not relieved from the engagement by the fact that the property is destroyed by fire and he is liable to pay the rent due in advance even though the destruction tabes place on the very day it falls due.”
This case differs from the Werner case in that here there was a partial destruction resulting in alleged untenantableness of the premises and, under the covenant applicable to such a condition, there was not to be a termination of the lease, but a mere suspension of rent until the premises were completely repaired. Eor whose benefit was the covenant, and what is its legal effect ?
It may be argued that both lessor and lessee were benefited by it. The former could uphold his lease by repairing, the latter was relieved from the obligation to surrender a possibly valuable lease which could otherwise be terminated, *469and he could hold the landlord under the covenant to repair.
It may also be argued that, if the covenant was mutually beneficial, the loss occasioned by the fire must be borne strictly in accordance with the agreement of the parties. Heither party is advantaged by the fire. One of them must suffer, unless covered by insurance, a feature not to be considered here. If we find for the landlord the tenant loses the benefit of the use of the premises while they remain untenantable. If we find for the tenant the landlord would suffer the loss of the rent for that period.
I think a safe guide is found in the rules observed in the Werner case, supra, and the cases therein cited to the same effect, that the absolute engagement to pay in advance obligates the lessee to pay the rent as agreed. The clause, “ the rent shall cease until such time as the building shall be put in complete repair,” is quite analogous to the words of the statute that a tenant shall not be “liable to pay the lessor or owner rent for the time subsequent to the surrender which has been construed as meaning that the tenant was to be relieved from the payment of rent accruing after the destruction of the building.”. Craig v. Butler, 83 Hun, 286, 288; affd, 156 N. Y. 612.
By the same rule of construction the clause in the lease, “ the rent shall cease until such time as the building shall be put in complete repair,” may be held to mean that the operation of the lease as to accruing rent is to be suspended during the period of repairs.
It lay with the parties to the lease to agree to their respective obligations and rights as to rent during the period of disrepair, and they could have unmistakably expressed their understanding if they so desired.
But, aside from all that has been said, the defendant’s claim for an allowance of rent may not be considered under the pleadings. The claim is set up as a defense, not as a counterclaim.
The payment of rent on the first of the month was absolute under the lease, hence the defendant is not in a position to avoid it by an event of the nature alleged, happening subse*470quently to the first. If he acquired any claim by the subsequent events it should have been made the subject of an offset or counterclaim.
In addition to what has been stated there was serious error committed in permitting defendants’ witnesses to testify as to the condition of the machinery and other personal property of the defendants as a consequence of the fire, as bearing upon the alleged untenantableness of the premises. The condition of these articles had nothing to do with the condition of the premises, and the objectionable evidence would necessarily seriously affect the jury upon the main issue presented to them. Other minor errors were committed at the trial which require no discussion now, as sufficient has been indicated to require a reversal of the judgment.
Judgment reversed and new trial ordered', with costs to appellant to abide event.