defendant covenanted that he was to do and make all repairs during the term of the lease between him and the plaintiff, and to quit and surrender the premises' at the expiration of the term in as good state and condition as they were at the commencement. He also covenanted that he would not make any alterations on the premises without the consent in writing of the lessor, under the penalty of forfeiture and damages.
This action was brought to recover damages sustained by a violation of both these covenants, viz: for a failure to make repairs and for alterations made without the consent of the plaintiff. On the trial the plaintiff proposed to show that' the defendant should have made repairs, and “admitted that the lease had two years to run.” The defendant objected; and the justice held that the plaintiff might show that the tenant had violated the covenant so far as not to make repairs which were essential to prevent the freehold from falling into decay. The plaintiff was permitted, however, to give evidence upon the subject of alterations; but when the plaintiff rested, the defendant’s counsel moved to dismiss the complaint, on the * grounds: 1. That the term was unexpired; and, 2. That there was no evidence showing irreparable damage to the building, or any waste, or any deterioration on the value of the premises, in consequence of the alteration proved to have been made, or proper evidence of the amount of damages, if any there were. The complaint was, upon this-motion, dismissed, and the plaintiff’s ease failed in both causes of action.
The justice seems to have been of the opinion that the plaintiff could not recover for repairs, because the defendant’s term was unexpired, •and such repairs were not essential to prevent the freehold from falling into decay, and that for some reason, but what does not clearly appear, the plaintiff was not entitled to recover, although alterations had been made without his consent.
In both of these views he was in error.
It has been determined in this State that an action on a covenant similar to that of the defendant to repair, could be maintained during the term (Schneffin v. Carpenter, 15 Wend., 400, and cases cited). Chief-Justice Holt, in the
A violation of the covenant not to make alterations is also attended with consequences of immediate liability. The covenant being broken, the rule is universal that a right of action at once acmes, unless there is something in the agreement of which it is a part only, to the contrary. Such is not the case here. On the contrary, the covenant provides that alterations shall not be made, under penalties of forfeiture and damages. In the case of Vickery v. Jackson (2 Starkie Rep., 260), which was an action of ejectment on forfeiture for breach of covenant, it appeared that the lease contained a covenant to repair within three months after notice, and also a general covenant to repair. The evidence of delapidation principally relied on was, that the defendant had broken a doorway through the wall of the demised house on to the adjoining house. ■ It was contended on the part of the defendant that the breach had been waived by acceptance of rent after notice given, and it was said on his behalf that it always had been his intention to rebuild the wall before the end of his term; but Lord Ellenborough held that this was a continuing breach and a want, óf repair which amounted to a forfeiture. The removal of the partition described by the witnesses in this case was an alteration of the premises, if it were
The judgment must be reversed.