SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. regard to the matter, among others, to the "New York board of fire underwriters," which is the representative of the insurance com panies. These provisions were alike for the benefit of landlords, tenants and underwriters. In the discharge of his duty the fire marshal entered the premises on the morning after the fire and allowed the defendant to begin to remove his goods only the day before the actual removal was commenced. The court called attention to the testimony of the defendant, "that he only remained there under the instructions of the fire marshal in order that his losses could be adjusted, and as soon as his losses were adjusted he moved therefrom." No exception was taken to this charge, and the verdict establishes the fact that the time occupied in and before the removal was a reasonable time. Austin v. Field (7 Abb. Pr. [N. S.] 29) does not conflict with this reasoning. In that case the tenant occupied the premises after a fire, and on the trial claimed that he continued in the use of the premises under a verbal agreement with the plaintiff that the lease should be at an end, and that he should remain in order to sell his damaged goods, and should pay what the use of the store in its damaged condition was worth. The court held that under this agreement the plaintiff could recover on the lease, up to the time of the fire, and that for the time the store was occupied after the fire the plaintiff's remedy was for use and occupation or upon the special agreement. Another question arises in the third cause of action alleged in the complaint, relating to the removal of the debris of the defendant's goods after the fire. There was evidence on both sides of the question, whether the underwriters on the premises or the underwriters on the goods were bound by custom to remove such debris, and this question was submitted to the jury, which found this question also in favor of the defendant. As there was contradictory evidence on all these questions of fact, the finding of the jury will not be disturbed. But there is another reason why the plaintiff's exception to the refusal of the court to direct a verdict in his favor on the third canse of action is untenable. The case of Fleischman v. Toplitz (134 N. Y. 349) is authority for the proposition that the court might well have dismissed the complaint as to this cause of action, or have App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. directed a verdict for the defendant. In that case there was a covenant in the lease that a tenant "at his own proper cost, charge and expense, will comply with all the rules, orders and requirements of the department of buildings of the city of New York, and the board of health of said city." A fire in which many horses were burned occurred on the demised premises and the landlord was notified and required by the city to remove the carcasses of the dead horses. This notice was sent to the landlord, who transmitted it to the tenant. The latter, in compliance with the order, removed the carcasses, expending a large sum of money, but in his correspondence with the landlord reserved the question whether he or the landlord was liable for the expenditure. The action was brought by the tenant against the landlord for the recovery of this amount. The court said (p. 354): "If the lease was terminated by the statute upon the destruction of the buildings, it is clear that the plaintiff as tenant and as between himself and his landlord, was not bound by its terms to perform any act in respect to the premises which the fire made necessary to be performed. Such performance could not be made until after the relation of landlord and tenant had ceased. Nor would the tenant in such case, apart from the terms of the lease, be obliged to remove the dead bodies of the horses. The act of 1860, in case of a dissolution of the relation of landlord and tenant under it, enables the tenant to quit and surrender the premises, and discharges him from liability for rent for the unexpired term. Manifestly, the damage to the real estate and the burden cast upon it by the fire must in such case be borne by the landlord and not by the tenant. The tenant is free to depart from the untenantable premises; the landlord resumes possession of his premises in the condition the fire has left them." Under this authority, the refusal of the court to direct a verdict in the present action, on such third cause of action, was, therefore, not an error of which the plaintiff can complain. We, therefore, see no error in any of the rulings of the court or in the rendition of a verdict in favor of the defendant on all the questions submitted to the jury. The judgment is affirmed, with costs. BARTLETT and WOODWARD, JJ., concurred in result; CULLEN, J., dissented; HATCH, J., absent. SECOND DEPARTMENT, JUNE TERM, 1898. WILLARD BARTLETT, J.: [Vol. 31. I agree with Mr. Justice CULLEN that the reasonable time which the law allows the tenant for the removal of his property must be solely for that purpose; and that he cannot be permitted to occupy the premises simply in order to promote his convenience in adjusting his loss with the insurers, unless he pays the reasonable value of such occupation. I am unable to find in the record, however, any request or exception which presents this point with sufficient directness or distinctness to render it available to the appellant; and I, therefore, concur in the conclusion reached by Judge GOODRICH. WOODWARD, J., concurred. CULLEN, J. (dissenting): I am of the opinion that the plaintiff was entitled, in any event, to recover the value of the reasonable use and occupation of the premises from the time of the fire to his removal therefrom. The statute prescribes that, in case a building is so injured by the elements, or other cause, as to become untenantable, the lessee or occupant shall not be liable or bound to pay rent therefor after such injury, and he may quit and surrender possession of the premises. When such an injury occurs to the demised premises, if the tenant wishes to avoid his covenant to pay rent, he must abandon his occupancy. I concede that he may have a reasonable time to remove his property, but the time occupied must be solely for the purpose of removal. I know of no principle which allows one man to remain in occupation of another man's land for the convenience of adjusting with the fire insurance company the amount of his loss, or in pursuance of any directions of the fire marshal. The defendant's testimony is that it was for such purpose he remained in possession. That occupation was for his own convenience and he must pay for it, not necessarily the rent reserved, for the lease had terminated, but the fair and reasonable value of the use and occupation. The trial court, therefore, erred in refusing to charge the plaintiff's first request. Judgment and order affirmed, with costs. App. Div.] SECOND DEPARTMENT, JUNE TERM, 1898. MAY CHARMAN, Respondent, v. MARIA E. HIBBLER, Individually and as Executrix, etc., of JOSEPH S. HIBBLER, Deceased, Appellant. Covenant against incumbrances· damages where the title is restricted - evidence of the grantee's knowledge of the fact-costs of an action to enforce the restriction. In an action to recover damages for the breach of a covenant against incumbrances, in a deed of property which was subject to certain restrictions in its use, prohibiting its occupation, among other things, for the purposes of a saloon, it is improper to allow a witness to state what his judgment is as to the difference in value between the property if it were free from incumbrances and the property subject to the restrictions. In such a case proof that the grantee knew of the existence of these restrictions upon the use of the premises when she purchased, is competent, when offered merely in mitigation of damages. It seems, that the costs and counsel fees resulting from the proper defense by the grantee of an action previously brought against her by a third party, because of her violation of such restrictions, are recoverable by her where proper notice of the action has been given to her grantor. APPEAL by the defendant, Maria E. Hibbler, individually and as executrix, etc., of Joseph S. Hibbler, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of February, 1898, upon the verdict of a jury, and also from an order entered in said clerk's office on the 25th day of March, 1898, denying the defendant's motion for a new trial made upon the minutes. John J. Crawford, for the appellant. Everett P. Wheeler, for the respondent. GOODRICH, P. J.: The action was brought to recover damages for the breach of the covenants of a deed executed by the defendant to the plaintiff in February, 1895, whereby, for the consideration of $9,000, the defendant conveyed to the plaintiff a parcel of vacant land at Mamaroneck, in the county of Westchester, being parts of certain lots on a map of Larchmont Manor. The premises comprise about eleven lots, twenty-five by one hundred feet each, and are situated on the north side of a curved road called Park avenue which faces 31 477 43 449 31 477 $54 64 SECOND DEPARTMENT, JUNE TERM, 1898. [Vol. 31. Long Island sound. The plaintiff erected a private hotel on the premises and opened it for guests. The hotel contained a barroom. The defendant derived title to the premises which she conveyed to the plaintiff through two deeds from the Larchmont Manor Company to Thompson J. S. Flint, executed and recorded in 1873 and 1875, respectively. These deeds contained the covenant of restriction set out hereafter, but the plaintiff alleged that she was not aware of such restriction when she purchased the property, and that she informed the defendant of her intention to erect a private hotel. The defendant denied both of these allegations and alleged that the plaintiff had full knowledge of the covenant of restriction when she took her title. The deed to the plaintiff contained the usual covenants of seisin, of quiet enjoyment, of freedom from incumbrances, for further assurance and of warranty. Larchmont Manor consists of a quasi park, which was laid out in 1873, since which time many wealthy people have purchased lots and erected costly summer residences thereon. There are two pleasure clubs in the immediate vicinity, the Hoboken Turtle Club and the Larchmont Yacht Club. Those facts affect in some degree the character and value of property in the vicinity. In 1896 William Murray, who had purchased other property in the manor, commenced an action against Mrs. Charman, the plaintiff, alleging that she was bound by the covenant of restriction and praying that she be enjoined from using her premises for any business purposes whatever, and particularly from using the same for a barroom, restaurant, saloon or boarding house. This action was based upon a covenant contained in deeds whereby the Larchmont Manor Company, the plaintiff's predecessor in title, conveyed the plaintiff's lot and a large number of other lots to purchasers, all of which deeds contained the following covenant of restriction: “And the said party of the second part, for himself, his heirs and assigns, do hereby covenant to and with the said Larchmont Manor Company, its successors and assigns, that the said premises hereinbefore described shall not at any time hereafter be used or occupied for the erection or maintenance of any slaughter-house, smith shop, forge, furnace, steam engine, brass foundry, nail or other iron factory, or any manufactory of gun powder, glue, varnish, vitriol, ink, soap, |