104 Misc. 543 | N.Y. App. Term. | 1918
Defendant-tenant filing no brief.
The petition is based on the failure of tenant respondent to pay rent for the month of February, 1918, of an apartment occupied by himself and family, under a written lease for a year, which lease contained no covenant by the landlord to furnish heat.
The tenant admitted the rent due but counterclaimed for an amount expended on gas heaters and other expenses not material upon the determination of this appeal. The court allowed the tenant’s counterclaim and granted a final order for the amount of the rent less the amount of the counterclaim. The issue litigated at the trial was as to whether there had been a failure on the part of the landlord to properly heat the apartment and the court resolved this question of fact in favor of the tenant and there is sufficient evidence to sustain the finding. The question which goes to the merits among the grounds urged upon this appeal concerns the ruling of the court below in allowing the tenant’s counterclaim. There is no difference in the rule of damage between the breach of an express
An entirely different situation, however, arises where, as in the case at bar, there is a lease of the premises with no covenant on the part of the landlord to furnish heat, although the means of furnishing heat are within the control of the landlord. In such a case there is an implication created by the court that a failure to supply heat furnished sufficient reason for an abandonment of the premises by the tenant and a refusal to pay rent. Berlinger v. Macdonald, 149 App.
It follows that the judgment should be reversed, with thirty dollars costs, and counterclaim dismissed, and final order entered for the landlord for the amount of rent claimed.
Lehman, J., concurs on authority of Jackson v. Paterno, 128 App. Div. 474; Pendleton, J., concurs in result.
Judgment reversed, with costs.