majority">Spring, J.:

The respondent leased to the defendant, by a written lease dated May 1, 1907, for the term of two years at the monthly rental of forty-five dollars, the house and premises located at Mo. 706 James street, in the city of Syracuse; and the defendant at once went into possession in/pursuance of the. lease.

The lessor in December, 1907, commenced this summary pro*812ceeding in the Municipal Court of the city of Syracuse to eject the defendant for the non-payment of rent. The defendant answered alleging defenses and counterclaims.

In the first place, the defendant claims there was no proper demand of the rent due. The demand was made by Mr. Ryan, the attorney for the respondent, and he demanded the sum of one hundred and thirty-five dollars, Or three months’ rent, which was con.cededly the amount due, except for counterclaims interposed. Upon the trial the defendant claimed that he had expended money during his occupancy, for putting in a furnace to heat the house. This item was in dispute and the parties, after the trial, stipulated that the amount due the defendant for the installation of this, furnace was eighty dollars,, and the Municipal Court found fifty-five dollars rent due after the deduction of this sum.

In the strict practice which prevailed at the common law it was essential for the petitioner in order to maintain' summary proceed-ings to remove the tenant for non-payment of rent to show.that he had demanded the precise sum due, and. upon the premises if the proceeding was founded upon a demand. The strictness of this rule is not contained in the Code. (Code Civ. Proc. § 2231, subd. 2.) In fact, where any rent is due aiid the tenant refuses to pay, the landlord is entitled to the final order and warrant of dispossession. (Jarvis v. Driggs, 69 N. Y. 143, 147; Durant Land Imp. Co. v. Thomson-Houston Electric Co., 49 N. Y. St. Repr. 716.)

The defendant did not offer to pay any rent. He claimed more his due than the amount of the rent and, therefore, refused to pay. The demand made by Ryan, the attorney and agent of the plaintiff, was effective in his behalf. '(Powers v. De O, 64 App. Div. 373.)

The defendant alleged in his answer for- his first counterclaim that on the 1st day of April, 1907,, a month before the. making of the, lease, an independent contract had been made whereby the plaintiff agreed to make certain repairs upon the premises which were to be completed before the commencement of the term; that he failed to do so and damages ensued to the defendant on account of such failure. It will be noted there is no allegation that the defendant ever made these repairs. In support of this averment the defendant endeavored to show an agreement, like that alleged, was entered into on.the day the lease was made, which 'was excluded *813The counsel for the defendant thereupon stated to the court that he expected “ to show that there was an independent oral contract made at this time for the making ,of certain repairs in this house which was to be done before the lease took effect, that is, before the first of May, 1907.” The court suggested that he put it in the form of a question, which he did as follows: “ Did you have any conversation with Mr. Moore (the plaintiff) in regard to- this property or anything to be done upon the property after the signing of the lease and before you moved in?” which was excluded. The ruling was correct. The defendant entered the premises knowing that • the repairs had not been made. If there was any breach of the contract it occurred before he went into possession. In the second place he made no repairs. He is not seeking to recover damages for money he expended. His damage or counterclaim is wholly for damages by reason of the omission of the respondent to make repairs before the term commenced. In the third place, if the alleged independent contract was prior or at the time of the execution of the lease, it was merged in the written instrument.

During the tenancy and in the month of October, 1907, there was a fire in the living room of the house on the premises, which burned a large hole in the floor and did other damage to the woodwork of this room and connecting rooms. The defendant requested the landlord to repair, which he finally declined to do. The defendant endeavored to show that he repaired the hole and the damaged woodwork evidently for the purpose of establishing the counterclaim contained in the 4th paragraph of the answer.

The evidence was excluded and the ruling was proper. If these were ordinary repairs, not equivalent to an eviction of the premises,' the landlord was not bound to make them, for it was expressly covenanted in the lease that he was “ to make-- no repairs or improvements on said premises.” If, however, as we may assume, the damages rendered the premises untenantable, they were provided for in another clause of the lease as follows : “ It is hereby further mutually covenanted and agreed that in case the buildings or tenements'- on said premises shall be so destroyed or injured by fire as to become untenantable, then this lease shall become thereby terminated, if said second party shall so elect, and in such case he shall vacate said premises and give immediate written notice thereof *814to said landlord, and in such case- rent shall ■ be- due and payable up to and at the time of such destruction or injury.”

The defendant, if the premises were, made untenantable, could have vacated them, and absolved himself from any liability for rent accruing after liis surrender. (Laws of 1896, chap. 547, § 197; May v. Gillis, 169 N. Y. 330.)

The defendant elected, however, to make the repairs and remain in possession, and, of course, continued liable for rent and to recognize the lease. (Smith v. Kerr, 108 N. Y. 31.)

The landlord in no case was called upon to make the repairs, and when he declined to do so he was strictly within his legal rights. He might have lost a tenant had the defendant availed himself of his option to terminate the lease, and he might have been obliged to repair the damages before securing another .tenant, but not in-pursuance of this lease. . The defendant had either of two courses open to him, and availed- himself of the one which continued the tenancy, and if he made the repairs, he did so of liis own choice and cannot hold the landlord for the cost of the same. ■

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.

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