dissenting.
The common law was that a tenant was obliged to pay rent to his landlord, even though the demised premises were destroyed by *165fire or otherwise, unless he had exempted himself from payment in case of their destruction, by an appropriate covenant in his lease. This was seldom done, and under this obstinate rule of law the courts often saw great hardships in recoveries, which they were powerless to remedy.
In 1860 the Legislature of our State passed a law which was intended to afford a remedy for the evil. Chapter 345 of the Laws of 1860 provides that the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the lease-hold premises, and of the land so leased or occupied.
This statute and its objects are entirely plain. It secures to a tenant the right to surrender the demised premises whenever they are rendered untenantable and unfit for occupancy, by injury from the elements, or any other cause, without his fault or neglect. The term “ injury ” in the statute has reference to some sudden calamity as contradistinguished from natural decay.
The referee has found, from testimony which supports his finding, that the roof and floors of the building in the demised premises in this case settled so much as to be unfit for occupancy, and that the immediate occasion of such settling was the weight of the snow which fell upon the roof in March, 1875. This was a sudden injury within the meaning of the statute, and put the tenant in a position to surrender the lease-hold premises and escape liability for the rent.' The referee finds that such surrender was made in December, 1875, and the action was for the rent for the quarter ending on the 1st day of May, 1876, and of course commencing on the first of February of the same year The lessee covenanted in his lease to do all the repairs required in and upon the premises, and to quit and surrender the premises demised in as good state and condition as reasonable use and wear thereof would permit, damages by the elements excepted. This last exception is very important and must be held to apply to the repairs as well as to the *166surrender. The repairs intended were ordinary repairs to prevent dilapidation, so as to render possible the surrender covenanted to be made, and the covenant to repair does not impose upon the tenant the liability to repair sudden injuries by the elements, or to rebuild in case of total destruction.
The judgment ought to be affirmed, with cost;.
Judgment reversed and new trial granted, costs to abide event; order of reference vacated. •