Opinion
May 11, 1943.
Appeal from the Municipal Court of the City of New York, Borough of Bronx, LYMAN, J.
Charles Segal for appellant.
Jesse Friedman for respondent.
OPINION
Section 227 Real Prop. of the Real Property Law is, by its terms, made inapplicable where, as here, an express agreement contrary to the provisions of the law is entered into between the parties.
The lease was not terminated by the provisions of paragraph Fourth thereof, since the fire occasioned damage only to the store and there was not a "total destruction of the building by fire". Moreover, the conduct of the tenant shows that he did not consider the lease terminated. The only relief to which the tenant under the terms of the lease is entitled is an abatement of the rent "for such period as is necessary for the actual making of repairs". While the evidence shows that the repairs were made in one month's time, the landlord delayed ten days in commencing work and the tenant is therefore entitled to an offset in the sum of $333.33.
Judgment reversed, with thirty dollars costs, and judgment directed for landlord for $424.80, with costs.
HAMMER, SHIENTAG and HECHT, JJ., concur.