18 Misc. 231 | N.Y. App. Term. | 1896
The justice found that the proof clearly established the presence, for a considerable period, of foul and offensive smells and odors in the defendant’s premises, and in the halls of the building in- question, which were a menace to the health and comfort of the defendant and his family, and justified him in abandoning the premises; that the extent of these nuisances was admitted by the plaintiff’s own witnesses; that they seriously inter
It is not possible to see how the justice could have come to any other conclusion. The defendant moved about the middle of February. Odors first became noticeable in Eovember or early in December, and repeated complaints were made by the tenant to the superintendent. Disinfectants, so-called, and perfume's were resorted to without effect. Finally the board of health intervened, and extensive repairs were made upon the plumbing throughout the building. Holes large enough to be visible were found in the pipes in the tenant’s apartments, and defects were found in the soil line, the waste lines, and the joints.
While the question as to what amounts to an untenantable condition is essentially one of fact, depending in each case upon the particular circumstances shown, there is, nevertheless, value in former decisions, which may be compared in their facts, with the special case in hand. In Tallman v. Murphy (above), an odor of coal gas sufficient to make the tenants sick, and smoke in some of the rooms, and loud explosions which shook the building, were held sufficient to constitute an eviction. In Tallman v. Earle, 3 Misc. Rep. 76, the smell of burning wood, so continuous and marked as to cause apprehensions of fire, was held sufficient. In Thalheimer v. Lempert, 17 N. Y. St. Repr. 345, a stench arising from defective plumbing, coupled wifh the want of a cold-air box connected with the furnace, was deemed enough. See also in Sully v. Schmitt, 147 N. Y. 248, a stench from the sewer upon adjacent premises of. the same landlord, was held to be tantamount to eviction. It is not alone the. fact that it is a disagreeable odor offensive to the sense of smell, but that it signifies a menace to life or health, and this the testimony shows, that justifies the tenant in abandoning the premises. And so with indications of" unsafety, of damage from fire, or the collapse' of the building. To suffer some inconvenience is one thing; to endanger life or health is another. On this trial an extreme case was made out in favor of the tenant.
The appellant objects that the answer fails to allege that the defects complained of were not due to gradual decay, and that the stat-' ute of 1860 does not contemplate a condition arising from gradual
The judgment should be affirmed, with costs.
MoAdam and Bischoff, JJ., concur.
Judgment affirmed, with costs.