The parties mutually executed a lease containing the following provisions :
“ It is further agreed by and between the parties hereto that if * * * the premises hereby leased or the building shall *235be 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 it requires to be rebuilt, then, from the time of the happening of the 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 to such time.”
The act of 1860, provides that “ the lessees 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.”
Pending the existence of the lease, the portion of the premises which the plaintiff demised to defendant were so far damaged by fire as to render them unfit for occupancy during the making of repairs, but the damage was not so great in extent that in the judgment of the lessor the structure required to be rebuilt.
The vital point of the controversy is, whether the statute shall control, and thus relieve respondent from all liability for future rent, or whether the provisions of the lease shall be applicable and controlling.
The Court of Appeals has decided (Butler v. Kidder, 87 N. Y. 103), that in order to take away the statutory protection the lease need not contain an express covenant to that precise effect, but its express provisions must clearly show that the parties had in mind the contingency which the statute mentions, and that they by mutual agreement made different provision therefor. That is to say, the law being enacted for the benefit of the lessee, and no reason founded in public policy requiring its enforcement, he may waive its provisions at his pleasure, and he does waive them by joining in a lease of *236which the express covenants plainly show a mutual intention that they shall not he invoked or relied on.
The language of the lease fairly construed then becomes the law of the case, and governs the rights and fixes the obligations of the parties respectively.
It is manifest that the parties had clearly in mind the contingency mentioned in the statute, to wit, damage to the premises by fire or other elements, and in that event the express language of the lease makes provision as to the rights and obligations of the parties, which provision, we think, is inconsistent with the right of surrender that the respondent claims and the court below upheld.
The statute provides for a surrender at the option of the lessee; the lease itself provides for its abrogation upon the exercise of the judgment of the lessors as to the need or propriety of rebuilding the damaged structure. The terms of the statute measure the extent of damage justifying a surrender by the fitness for occupancy of the demised premises; by the terms of the lease its cancellation depends upon the judgment of the lessor or its election to rebuild the premises.
To us it seems clear that the parties meant to provide for every degree or extent of damage caused by fire or the elements.
In any conceivable case such damage either would be extensive enough to invoke the lessor’s judgment that the structure should be rebuilt, or it would not be sufficient to produce that result, although for the time being it might render wholly untenantable the demised premises.
On the other hand, the structure itself might require rebuilding, although the floors or portions thereof covered by the lease might be wholly uninjured and undisturbed.
Respondent’s contention, however, appears to be that the precise language of the lease in controversy does not provide for a degree of damage rendering the whole of the demised promises untenantable and unfit for occupancy, and therefore, the lease being silent, the terms of the statute become operative, and its protection available.
*237But we think such construction of the language employed, would be forced and unnatural.
The language “ pay rent only for such portion,” is fairly equivalent to “ shall not pay rent except for such portion;” the same meaning might be expressed by the language, “ shall pay rent for such portion (if any) of the leased premises as he can reasonably occupy.”
The negative expression “ only for such portion,” carries no implication that there must be some portion remaining in a tenantable condition; the parties evidently contemplated not merely the unfitness for occupancy caused by fire, but such also as might be occasioned by the presence of workmen, materials, and tools and machinery employed in making repairs.
The language of the lease should be interpreted according to the same rules of construction as if no statute were in existence ; it being plain, beyond controversy, that the parties had in mind the contingency which the remedial statute provides for, and have made express covenants concerning the same, the court has only to determine the meaning of the language employed, and discover whether or not the parties meant that the statutory provisions should be applicable.
We are satisfied that the parties intended that any damage by the elements not sufficient to call for the rebuilding of .the demised premises, should cause no cancellation of the lease, but that reparable damage should justify only a suspension or diminution of the rent reserved until the premises might be properly repaired.
These views are not at variance with the opinion of the General Term upon the former appeal; the question there being whether evidence tending to show an eviction should have been submitted to the jury.
Let the usual order for a new trial be entered, with costs to appellant, to abide the event.
Judgment affirmed.