16 N.Y.S. 846 | City of New York Municipal Court | 1891
In May, 1889, the plaintiffs, as lessors, rented to defendant, as lessee, an apartment in the Southerland Flats, 709 Madison avenue, in the city, for the period of one year commencing May 1, 1889, the defendant then being in possession thereof under a former letting. It appears that Jn Octobei, 1889, the plaintiffs commenced certain alterations and repairs in
The main contention of the plaintiffs upon this appeal is predicated upon the theory that the defendant is not relieved from the payment of the rent provided for in the lease because he remained in possession of the demised premises during the continuance of the work just described, and that all such' repairs and alterations were made in obedience to an order of the department of buildings. The plaintiffs of course must admit that, if their repairs and alterations were commenced and completed of their own volition, their entry upon and into defendant’s apartments without right for the purpose of carrying out the same was an eviction, and that for the time defendant was so evicted from a substantial portion of the demised premises the rent of the whole suite ceased. Therefore the first question presented for our decision is, “did the plaintiffs voluntarily make the repairs and alterations complained of, or were they made by them under and by virtue of an order of the building ■department?” The alterations and repairs indicated were done by plaintiffs because the building in question was deemed unsafe or dangerous, and it is ■ only because of that fact (that the building was deemed unsafe or dangerous) that the department of buildings would be authorized to require the plaintiffs to do such alterations or repairs. The law controlling the department of buildings in matters concerning alleged unsafe buildings in this city, and the •course of procedure to be adopted and followed by said department in such cases, is contained in sections 507, 509-513, c. 410, Laws 1882, as amended by chapter 456, Laws 1885, and chapter 566, Laws 1887. Section 507 provides “that all notices directing anything to be done in any building deemed unsafe or dangerous shall be issued by the superintendent of buildings, and shall have his name affixed thereto. ” Section 509 provides that said notice shall require the owner, or any person having an interest in such premises, to make the same safe or secure as directed by said superintendent, and that ■ the person so served shall at once certify to said superintendent his assent oi refusal to comply with the terms of said notice. Section 510 provides that, in ease the person served with said notice consents to comply with the terms thereof, he shall be allowed until next day at 1 o’clock p. h., when he must ■ commence to make the premises safe. It also provides that certain proceedings may be taken by said department in case he fails or refuses to comply with said notice. Sections 511-513 contain provisions which do not affect this action, and are merely cited so as to present all of the sections of said act which apply to cases of this character. The notice required by section 507 is the initiatory step or proceeding officially taken by the superintendent of buildings in declaring a building in this city to be unsafe or dangerous. Until said notice is issued as in said section provided, every building must be deemed safe and sound, including the premises in question. I am therefore •of the opinion that, unless the record of this case shows that such a notice was issued, it must be considered that the alterations and repairs herein re.
1 do'not think that the reference by defendant’s counsel, in summing up, to the Equitable Life Insurance Company, prejudiced plaintiffs’ cause. I believe the jury decided against the plaintiffs on the merits of the case. Besides, the remark of the trial justice, made immediately after such statement was made, and his charge, were strong enough to remove any prejudice that any of the jurors may have conceived against plaintiffs because of the said statement. Besides this, the defendant testified that the plaintiff Golding or Mr. Hamilton told him that the Equitable Life was the owner of the said premises. This testimony is not disputed; therefore the statement is based upon testimony in the case, ihe admission of which was not objected to, and therefore it was proper for counsel to refer to it in summing up. 1 cannot find any objections taken by plaintiffs which are meritorious enough to reverse the judgment herein. J udgment affirmed, with costs. «