I agree that the judgment must be reversed for the reason that, if the tenants have any ground for relief from payment of rent, under the facts of this ease, it is not available as a defense, and no counterclaim or offset is pleaded. It seems proper to add that, since the tenants were under an absolute obligation to pay the rent sued for herein, in advance, on the day fixed by the lease, I think they are not relieved therefrom by reason of the subsequent damage by fire, and that the covenants of the lease under consideration can only operate to suspend rent accruing within the period of untenantability. In other words, if the untenantable condition continued and existed at the time the next payment of rent became due, the suspension of rent contemplated by the covenant could be properly set up as an offset or counterclaim.
These conclusions are in accord with the rules laid down in Werner v. Padula, 49 App. Div. 135; affd. on the opinion of the court below in 167 N. Y. 611, and Craig v. Butler, 83 Hun, 286, which are controlling here.
Judgment reversed and new trial ordered, with costs to appellant to abide event.