WHAT IS TOTAL DESTRUCTION?
When the building 102-106 Wooster street in the borough of Manhattan was burned on April 11, 1894,the fire burst through the front windows and also went up the stairways to the roof. The wooden partition separating the front part of this loft from the rear part was entirely destroyed; the floor and ceiling were injured; and all the wookwork was charred to some extent. The tenants’ lease from David L. Einstein, the landlord, contained a fire clause providing that, if the building should be “partially damaged by fire, the same shall be repaired as speedily as possible by the lessor,” and, in case the damage shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair; but,in case of the total destruction of the premises by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and thenceforth this lease shall cease and come to an end. The building was at once repaired and tendered to the tenant, who refused to return, claiming that the premises had been totally destroyed by fire, and that the case had, therefore,come to an end. The verdict was for the tenant. The judgment thus rendered has recently been reversed by the First Appellate court, which held that the trial court erred in charging the jury that the defendant was entitled to a verdict in case the loft in question was so damaged by fire that it did not exist as a loft for the purpose for which it was intended by the parties. This, the presiding justice said, was equivalent to charging that, if the premises became untenantable, the lease terminated, because, if the loft became untenantable, it did not exist as a loft for the purpose for which it was intended by the parties. It was intended to be occupied as a loft, and if its condition immediately after the fire were such that it could not be occupied by the tenant for the purposes of his business, it did not exist as a loft for the purpose for which it was intended by the parties.
There is a clear distinction (the presiding justice said) in the fire clause between the premises being untenantable and being totally destroyed. In the consideration of this appeal it is not necessary to discuss the question as to whether the term “premises’’ meant the loft or the whole building. T he only part of the premises let which was totally destroyed was the wooden partition. It is true that the supports were charred and the floors injured to some extent, and that the windows were broken and their surroundings burned; but there was no total destruction whatever of the premises. ‘Hie walls were standing; there was a covering to the premises leased, in the floor above, which was injured, not by fire, but by attempts to get rid of the water in it; and there was a floor to the premises, only injured in a few small places, difficult to see. If there were a total destruction of the loft which was left, what distinction is to be drawn between premises becoming untenantable by reason of fire and premises being totally destroyed by reason of fire? We think that the court also erred in refusing to charge that there was no total destruction of the premises within the terms of the lease. It has never yet been held that the destruction of a partition or the burning of windows is a total destruction of premises, within the meaning of the ordinary fire clause of a lease such as the one in question; although such damage may render the premises untenantable until properly repaired.