Opinion
April, 1908.
Abr. A. Silberberg, for appellant.
Abramson Potter, for respondents.
This case comes up on an agreed statement of facts, which are briefly as follows: One Aronowitz, the owner of certain premises, leased them to Mantel. The lease provided that repairs were to be made by Aronowitz. Subsequently this plaintiff acquired title to the premises and also became entitled to the rent under the lease, and the defendants herein succeeded to Mantel's rights under the lease. Thereafter these defendants attorned to the plaintiff. After June 1, 1907, repairs became necessary to the premises and the tenants made them to the extent of sixty-one dollars in value. On December 1, 1907, the tenants refused to pay the rent of sixty-five dollars due for that month, claiming an offset for said repairs to the amount of said sixty-one dollars, tendered the balance of four dollars to the plaintiff, who refused the same, and brought this action, claiming sixty-five dollars, the defendants paying four dollars into court and counterclaiming for sixty-one dollars for said repairs. Two questions only are raised: First. Does the covenant for repairs contained in the lease bind the plaintiff herein? and Second. Can the sum expended by the tenants for repairs be counterclaimed in an action for rent? The lower court decided these questions in favor of the defendants, and we think correctly. A covenant for repairs runs with the land. Mott v. Oppenheimer, 135 N.Y. 312; Coatsworth v. Schoellkopf, 55 N.Y.S. 753; Chopl. Landl. Ten. 273. The lease contained a covenant whereby the original owner and lessor agreed to make the repairs and, as grantee and assignee of the lease, the landlord herein became liable on all covenants which run with the land and create a privity of estate. As to the second question there is no doubt about the right of the tenants to the counterclaim for the amount expended for repairs. Mayor v. Mabie, 13 N.Y. 151; Ely v. Spiero, 51 N.Y.S. 124 Kelsey v. Ward, 38 N.Y. 83; Greenwood v. Wetterau, 84 N.Y.S. 287; Code Civ. Pro. § 2244.
The judgment should be affirmed, with costs.
Present, GILDERSLEEVE, SEABURY and DAYTON, JJ.
Judgment affirmed, with costs.