[1] The parties entered into a lease wherein the landlord agreed that in case of fire he would cause the damage to be repaired forthwith. In so far as damages by fire are concerned, this provision must be regarded as an express agreement in writing, which overrides the provisions of section 227 of the real property law (Con-sol. Laws 1909, c. 50). Roman v. Taylor, 93 App. Div. 449, 87 N. Y. Supp. 653.
[2] The tenant, however, may still abandon the premises, upon the theory of a constructive eviction, where, after the fire, the landlord unreasonably refuses or neglects to make the repairs, and allows the premises to continue untenantable. In this case the tenant claimed a constructive eviction by reason of the landlord’s refusal to repair, and the landlord denied that he had ever refused.
[3] The defendant was permitted to show that the plaintiff had insured his rents, and received indemnification for more than half of the amount of his December and January rent from the insurance company. There is no doubt but that the admission of this testimony was prejudicial error. The fact that the plaintiff has received payment of all or part of the loss sustained can be shown neither in bar nor mitigation of damages in this action. Merrick v. Brainard, 38 Barb. 574; Collins v. New York Central R. R. Co., 5 Hun, 503, affirmed 71 N. Y. 609; Briggs v. New York Central, 72 N. Y. 26.
The defendant claims that upon payment of the amount of loss the insurance company became subrogated to the plaintiff’s rights. C. F. Insurance Co. v. Erie Railway Co., 73 N. Y. 399, 29 Am. Rep. 171. *475He fails, however, to point out how any such question is relevant upon the issues in this action. So far as this action is concerned, the testimony was absolutely immaterial. Its only possible effect was to prejudice the jury.
Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.