85 N.Y.S. 851 | N.Y. App. Div. | 1903
The action is for rent of an apartment, and the defense is constructive, eviction. The case of the tenant is that he went into possession under a lease in October; that he and the members of his family soon noticed a disagreeable odor at certain times when the windows of his apartment were open, which they first attributed to :a leak of illuminating gas, but when the gas pipe, after long delay, was repaired, the odor continued, and that members of the family suffered from sore throat. In April the tenant moved out.
The judgment for the landlord must be affirmed, for two reasons: First. I think that the proof of the cause of this odor is too vague. The tenant’s wife testifies that she does not know whence it came. The tenant fences with the inquiry as to its origin, and finally
Second, even if the evidence clearly established that the odor arose from an outside vent pipe, yet it showed nothing beyond this.
The judgment should be affirmed, with costs.
Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.