113 N.Y.S. 472 | N.Y. App. Div. | 1908
Lead Opinion
Defendant leased from plaintiff, for a period of one year, an apartment in the city of New York. The rent was payable monthly in advance. During the term of the lease the defendant vacated the premises and this action was brought to recover for three months’ rent. Payment was resisted upon the ground that without any fault or neglect on the part of the defendant the apartment leased became untenantable and unfit for occupation within the meaning of the statute (Laws of 1896, chap. 547, § 197). The action was brought in the Municipal Court, where the defendant had a verdict of “No cause of action” and from the judgment entered thereon an appeal was taken' to the Appellate Term, where the same was reversed, one of the justices dissenting, and by permission an appeal was then taken to this court.
The defendant vacated the premises leased on account of the noise and vibration caused by the operation of an electric light and
Under these facts I do not think the case is brought within the meaning of the statute, which provides that: “ Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or in jury occurred without liis fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied ; and he is not liable to pay to the lessor or owner, rent for the time subsequent to- the surrender.” The statute clearly contemplates a physical destruction of, or injury to, the building itself or something within the building for which the landlord is responsible, or over which he has control. (Majestic Hotel Co. v. Eyre, 53 App. Div. 273.) The occasion for its passage was to relieve tenants from the payment of rent where the premises were physically destroyed by the action of the elements. (Suydam v. Jackson, 54 N. Y. 450.) And while it is true that the original purpose has been somewhat extended by the words “ or any other cause ” nevertheless there still must be, in order to bring a case within the statute, some physical destruction of the building or some defect in it by which it is rendered uninhabitable. (Tallman v. Murphy, 120 N. Y. 345; Meserole v. Sinn, 34 App. Div. 33; affd., sub nom. Meserole v. Hoyt, 161 N. Y. 59.)
For these reasons we think that the determination of the Appellate Term should be affirmed, with costs.
Patterson, P. J., and Houghton, J., concurred; Lahgblin and Scott, JJ., dissented.
Dissenting Opinion
The defendant appeals from a determination of the Appellate Term reversing a judgment of the Municipal Court. The action is for rent of an'apartment in an apartment house in the city of New York. The defense relied upon is that without any fault or "neglect on the part of the defendant the apartment demised to her by the plaintiff became untenantable and unfit for occupation within the meaning of section 197 of chapter 547 of the Laws of 1896 (Peal Prop. Law) and that on or about the 20th day of May, 1907, and before the commencement of the period for which the rent demanded in the complaint became due, and before the same accrued the defendant was obliged to and did quit and surrender the possession of the premises to the plaintiff. The action is for rent for the months of June, July, August and September, 1907. The defendant entered into occupation of the premises, under a written lease, on or about October 1, 1906. In January, 1907, a power plant upon adjoining property was greatly enlarged, and additional machinery was installed therein. The result was to produce so much and such incessant noise, and such vibration of the apartment house that the ceilings cracked, the shaking was continuous and the tenants found
Assuming that by reason of the great and unceasing noise and vibration the premises did in fact become untenantable and unfit for occupancy, it remains to be considered whether the statute upon which defendant relies constitutes a defense. That statute, which is substantially a re-enactment of the 1st section of chapter 345 of the Laws of 1860, reads as follows: “ Where any building which is leased or occupied, is destroyed or so injured by the elements or any other cause as to be untenantable and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased and occupied ; and he is not liable to pay to the lessor or owner rent for the time subsequent to the surrender.” When this statute, or rather the earlier one from which it was copied, first came before the courts there was a disposition to construe it with great strictness in favor of the landlord, and it was said to apply only to the case of “ a sudden and total destruction by the elements, acting with unusual power, or by human agency ” or to “ a case of injury to the premises short of a total destruction occasioned in the same way.” (Suydam v. Jackson, 54 N. Y. 455.) The later cases, however, recognized that the statute was intended to have a wider application, and that more force should be given to the words “ or any other cause,” so that even a gradual deterioration which produces results rendering the premises uninhabitable can be availed of to defeat a recovery for the rent. (Tallman v. Murphy, 120 N. Y. 345 ; Meserole v. Sinn, 34 App. Div. 33 ; affd., sub nom. Meserole v. Hoyt, 161 N. Y. 59.) It is not necessary that there shall be a total destruction of the demised premises or that they shall be rendered physically unsafe, or even that they shall be so injured that it is a physical impossibility to inhabit them. All that
The determination of the Appellate Term should be reversed, and the judgment of the Municipal Court affirmed, with costs to the appellant in this court and the Appellate Term.
Laughlin, J., concurred.
Determination affirmed, with costs.