J. W. Cushman & Co. v. Rohl

153 N.Y.S. 94 | N.Y. App. Term. | 1915

BIJUR, J.

[1] This action is brought for rent of an apartment occupied by the defendant, and the defense is a constructive eviction by reason of the- alleged offensive presence of mice and bedbugs in the defendant’s apartment. It does not appear in the case that the presence of this vermin was due to any act of the landlord, or that it originated in any part of the premises under control of the landlord. The fact that it was not seriously, if at all, noted until some three months after the tenant’s occupancy, and the testimony as to the condition in which the tenant kept the apartment, cast, to say the least, very serious doubt upon the origin of the nuisance. Under such circumstances, it does not seem to me that the doctrine applied in Barnard Realty Co. v. Bonwit, 155 App. Div. 182, 139 N. Y. Supp. 1050, and Streep v. Simpson, 80 Misc. Rep. 666, 141 N. Y. Supp. 863, applies.

[2] Moreover, in view of the sharp conflict in the evidence as to the actual conditions existing in the apartment, and the presence and extent of the nuisance claimed by defendant, plaintiff should have been permitted to prove, what he offered and endeavored to prove, namely:

“That there were frequent altercations between the defendant and his wife which reached a point that, according to the defendant’s own statement, he was unable to stand the disgrace of it and was going to move.”

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.