This action was brought to recover rent reserved by a lease of real estate to tbe defendants. The lease contained a covenant on the part of tbe plaintiff to keep tbe buildings in good repair and condition for tbe purposes of tbe business conducted therein. Tbe answer admitted tbe lease, and that tbe defendants entered into tbe possession of tbe premises thereunder, but alleged that one of tbe buildings was subsequently destroyed by fire, without fault of tbe defendants, and that tbe plaintiff bad neglected and refused to rebuild tbe same. Tbe answer also contained a counter-claim, in which tbe defendants demanded judgment. Tbe plaintiff’s reply admitted tbe destruction of one of tbe buildings by fire, and alleged that tbe fire originated solely through tbe gross carelessness of tbe defendants while deliberately’ and willfully engaged in roasting or beating almond shells or some other equally inflammable substance, for tbe purpose of using tbe same in tbe business referred to in tbe lease, as an adulterating material, contrary to tbe statute in such case made and provided, and that while so engaged tbe defendants well knew tbe hazard of tbe same, and that in so doing there was extreme danger and great probability that tbe same would cause tbe destruction of tbe building by fire.
Upon tbe trial tbe cqurt directed a verdict upon tbe pleadings in favor of tbe defendants for tbe amount due upon their counter*67claim, but on a motion for. new-trial made upon tbe minutes it ordered a new trial upon tbe ground that the plaintiffs covenant contained in tbe lease to repair is independent of tbe defendant’s covenant to pay rent, and that it was error for tbe court to hold that tbe performance by tbe lessor was a condition precedent to any liability on tbe part of tbe defendants for rent. In tbe case of Allen v. Culver (3 Denio, 284) it was held that tbe covenants to pay rent and to repair were independent, and that tbe lessee was bound to pay a proportionate part. of tbe rent on account of tbe buildings remaining uninjured, notwithstanding tbe default in rebuilding.
In tbe case of Whitbeck v. Skinner (7 Hill, 53), it was held, that in assumpsit to recover tbe rent of demised premises tbe tenant may ayail himself of a breach of tbe landlord’s agreement to repair by way of recoupment, though not as a set-off
In the case of Kelsey v. Ward (16 Abb. Pr., 98), it was held, that a breach of tbe landlord’s contract to improve or repair tbe demised premises, is no defense to bis demand for rent; that it was available only by way of counter-claim or in a cross-action.
In the case of Speckels v. Sax (1 E. D. Smith, 253), it was held, that although tbe terms of a lease bind tbe landlord to repair, bis neglect to do so will not authorize tbe tenant’s abandonment of tbe demised premises, unless by tbe terms of the agreement tbe repairs were made a condition precedent to tbe obligation to occupy; that the landlord’s failure to repair, where be is bound to do so by his agreement with tbe tenant, will not amount to an eviction but only to a breach of covenant.
In the case of Myers v. Burns (35 N. Y., 269), it was held, that in an action for rent tbe defendant can, under a covenant of tbe landlord to keep tbe premises in repair, set up as a counter-claim tbe amount expended by him in tbe necessary repair of the premises; and also damages sustained by tbe loss of tbe use of certain parts of the premises rendered untenantable for want of repair.
In tbe case of Kelsey v. Ward (38 N. Y., 83), it was held that an action for rent is not barred by tbe failure of tbe lessor fully to perform bis contract, where tbe lessee enters into possession and occupies tbe premises; that tbe remedy of tbe lessee is by recouping from tbe rent such damages as they have sustained by failure of the *68lessor to fulfill his contract, or to bring a separate action for the recovery of such damages. (See, also, Cook v. Soule, 1 T. & C., 116; S. C., 56 N. Y., 420; Hexter v. Knox, 7 J. & S., 109; Harger v. Edmonds, 4 Barb., 256; Hallett v. Wylie, 3 Johns., 44.) These authorities appear to sustain the decision of the trial court in granting the motion for a new trial; where the motion for a new trial is made upon the minutes motion costs only are allowable. (3 Wait’s Pr., 512.)
The order should, therefore, be affirmed, with costs to abide event.
Smith, P. J., and Bkadley, J., concurred.Order affirmed, with costs to abide event.