Opinion
January 29, 1937.
Action brought by a tenant to recover damages for breach of a lease, which breach was alleged to have been caused by reason of the negligent act of the defendant-landlord's employee in turning off the water in the sprinkler system at a time when a fire was in progress in the demised premises. The answer, after certain admissions and denials of allegations of the complaint, sets forth, as a first defense, certain clauses of the lease which defendant, in connection with other facts pleaded in the defense, claimed to be efficient to grant immunity to the defendant from liability to plaintiff for the alleged damages. The defendant moved at Special Term for summary judgment pursuant to subdivision 8 of rule 113 of the Rules of Civil Practice. The motion was granted. From the order entered thereon and from the judgment in favor of the defendant dismissing the complaint on the merits, the plaintiff appeals. Order and judgment reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, on authority of Felberose Holding Corp. v. N.Y. Rapid Transit Corp. ( 244 App. Div. 427). Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur.