The parties mutually executed a lease containing the following provision:
“ And it it is further agreed, by and between the parties hereto, that if without fault, neglect or improper conduct of the party of the second part, his -agents, servants or tenants, the premises hereby leased, 01. the building, shall be damaged by fire, the elements, or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs; but if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then, from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time.”
The premises demised to defendant consisted of the basement, cellar, first and second floors; there were several other floors in the building. Defendant’s premises were so damaged by fire during the lease as to render them untenantable, but did not damage the building to an extent that required rebuilding thereof. The question raised by this appeal is: “ Did. the fire terminate the lease so as to relieve defendant from pay*233ment of rent after the fire?” Under the provision of the lease above set out, it is admitted that no such benefit inured to defendant, but he relies upon chapter 345, Laws of 1860, for this relief.
That act provides that “the lessee or occupants of any building which shall 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.”
Certainly, unless the parties by their own written agreement took this case out of the protection of the statute, the defendant is entitled to the benefit it affords.
If we declare that they did so by virtue of their agreement above mentioned, we predicate our conclusion upon implication and inference merely, because clearly that agreement refers only to a partial destruction of the demised premises and the damage or destruction of the building to such an extent as to require rebuilding of the same; nothing is therein written concerning the total destruction of the whole of the demised premises so as to render the same untenantable.
It is only in instances where the parties have by written agreement, otherwise expressly provided, that the lessee is deprived of the benefit of the 1860 statute, and we should not be overzealous in our efforts to spell' out such an agreement, from an uncertain and ambiguous covenant such as is here presented ; upon the contrary, we believe that the lessee should receive the shelter afforded by that act unless by his own consent he placed himself outside its shelter. Can the statute of 1860, be incorporated in the agreement made between plaintiff and defendant without conflicting with, contradicting or in anywise interfering with its terms? If so, then it appears clear to us that the parties did not intend to provide against that statute and that it, therefore, applies to this case. The statute of 1860, is in effect incorporated into every lease, unless otherwise expressly provided by written agreement or covenant *234(Butler v. Kidder, 87 N. Y. 103), this being so, we must consider that the agreement of plaintiff and defendant contains the privileges or exceptions of said act, unless such inclusion would be repugnant to such agreement, which we can readily ascertain. The agreement with the privileges of said act in, would read as follows:
“ And it is further agreed by and between the parties hereto that if without fault, neglect or improper conduct of the party of the second part, his agents, servants or tenants the premises hereby leased or the building shall be damaged by fire, the elements or otherwise, the party of the second part shall continue to pay rent only for such portion of the leased premises as he can reasonably occupy during the time required to make the necessary repairs.”
“ If the whole of the demised premises shall be so destroyed or be so injured as to be untenantable and unfit for occupancy, the party of the second part shall not be liable or bound to pay rent to the lessor after such destruction or injury, but if the building shall be so damaged or destroyed as, in the judgment of the parties of the first part, to require to be rebuilt, then from the time of the happening of said events, or either of them, this lease and the term hereof shall wholly end and determine, and the premises be vacated and fully surrendered, and the rent shall be paid up to such time!”
As amended, this agreement strikes us as being harmonious, consistent, unambiguous and entirely just and reasonable, carries out the spirit of the act of 1860, without interfering with the written agreement of the parties thereto, and which was not intended we think to do away with said act.
.For these reasons and finding no error in the appeal record, we think that the judgment should be affirmed, with costs.
Uewburger, J., concurs.