179 A.D. 735 | N.Y. App. Div. | 1917
The plaintiff has recovered a judgment in the sum of $4,270 for the damages claimed to have been sustained by her as the result of her constructive eviction from premises leased by her from the defendants. On July 29, 1913, plaintiff hired from the defendants under an instrument in writing the most easterly store in the building No. 66 West Thirty-eighth street, borough of Manhattan, city of New York, and the one-story building with the basement thereunder in the rear of Nos. 66-68 West Thirty-eighth street, to be used and . occupied by her as a restaurant, lunch room and tea room for a period of five years, beginning September 1, 1913, at a yearly rental of $1,800, payable in equal monthly installments in advance on the first day of each month. The landlords reserved the right to cancel the lease at any • time after September 1, 1916, on giving ninety days’ notice, whereupon the tenant should have the last three months’ use of the premises free of rent. Before signing the lease the plaintiff examined the premises. They were of rather unusual construction, as the store referred to in the lease is a narrow one, about six feet wide, which was used for the purpose of ingress into the rear building occupied entirely by the plaintiff, which comprised a room on the same level as the store, used by her as the dining room, and a lower floor on a level with the courtyard, called the basement, used by her as a kitchen and storeroom. There was a doorway from the basement into this courtyard, but the courtyard itself was not included within the terms of the lease, although she had used it to store an ice cream box and some other boxes and rubbish therein. This rear building had been constructed by a prior lessee who had abandoned his lease, and the landlords had completed the erection of the building on a smaller scale as to height than was originally intended. The rear building was constructed from second-hand brick, and its walls were sixteen inches thick in the basement and twelve inches thick above, and poorly constructed. These walls were porous and in certain places permitted the dampness and rain to strike through. They were in this condition when the lease was signed. Plaintiff was the first occupant thereof. In the courtyard was a drain
In the original complaint the plaintiff alleged that she had duly performed all the conditions on her part prescribed by said lease up to the time that she was forced to abandon the premises. By her amended complaint she admitted that she had not paid the rent for the three months in question, but pleaded as an excuse for not so doing, First, that the defendants had unlawfully discharged water from other premises owned by them upon the leased premises and negligently allowed the walls, roof and skylight of the demised premises to be in disrepair; second, that the demised premises were injured by storm and rain and by the action of the elements and thereby became unfit for occupancy, and that the defendants failed to repair the same although called upon so to do, and third, that the defendants failed to keep the premises in a proper condition for occupancy and thereby violated the 11th clause of the lease between them, which is the covenant of quiet enjoyment.
This action is brought for a constructive eviction based upon the alleged breach of the covenant of quiet enjoyment which is contained in the paragraph of the lease marked 11th, and reads as follows: “ The landlord further covenants that the tenant on paying the said yearly rent as hereinabove provided, and faithfully and fully keeping and performing the conditions and covenants herein contained, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid.”
In Meyer v. Schulte (160 App. Div. 236; affd., without opinion, 213 N. Y. 675) this court affirmed the judgment upon the opinion of Mr. Justice Page at Trial Term, that case having been tried by the court without a jury. In that opinion so adopted by this court it was said: “ But if it were conceded that plaintiff as assignee assumed the position of landlord to the defendants, I am still of the opinion that the defendants could not recover on their counterclaim, for the reason that they have not proved performance of the con
The plaintiff has utterly failed to prove that her premises were in any way damaged or affected by any water discharged thereupon from defendants’ other property. The only condition which is established is that which existed in the basement of her premises where her kitchen and storeroom were maintained. The flow of water into the basement of her premises, with the consequent smell of sewage and dampness, together with the damage claimed to have been done to her supplies in the storeroom in the basement, are chargeable directly to the backing up of the water from the city sewer, a condition over which the defendants had no control and for which they were in no way responsible. If any responsibility for that condition could be charged against any one, it must be against the municipality which maintained the sewers, and to hold even it responsible very much more proof would be required than exists in this case. There is no proof of any trespass on the part of the defendants nor any negligence by them which in any way contributed to plaintiff’s damage, and
It follows, therefore, that the finding of the jury that the plaintiff was constructively evicted from the premises in question by reason of defendants' breach of their covenant of quiet enjoyment in the lease thereof must be reversed. The judgment and order appealed from will be reversed, with costs, and judgment directed in favor of the defendants on their counterclaim in the sum of $1,023.50, with costs.
Clarke, P. J., Scott, Smith and Page, JJ., concurred.
Judgment and order reversed, with costs, and judgment directed in favor of defendants on their counterclaim in the sum of $1,023.50, with costs. Order to be settled-on notice.