56 A.D. 299 | N.Y. App. Div. | 1900
This action was brought in a Municipal Court of the city of Rew York to recover for rent reserved by a written lease of premises of which the plaintiff was the landlord and the defendant a tenant, such rent being for the month of December, 1897. The defense interposed was that of an eviction caused by the landlord suffering ■a nuisance to be maintained upon portions of the premises not
It appeared in evidence that the premises were infected by noxious odors in June, 1896, and also that the defendant remained in possession of the premises.after he became aware of the existence-of those odors; but it also appeared that he remained there under a. promise or understanding that the evil would be remedied. As he-
The general rule of law respecting the right of a lessee to abandon premises where there is a constructive eviction by reason of the landlord creating or suffering a nuisance upon adjoining premises er parts of premises not within the possession nor under the'control of a tenant complaining, but presumably under the control of the landlord, is not drawn in question in this case. The only ground of the reversal by the Appellate Term is that the defendant by retaining possession waived his right to repudiate or terminate the hiring, and that he was required to act with reasonable promptitude. Without questioning the rule as a general proposition, we think it is plain in this case that the defendant only waived conditions existing at the time he paid each month’s rent before June, 1897, and that, when he then found the condition of the premises to be so much worse than it ever had been before, he was justified in leaving and standing'upon his legal right to claim that he was evicted.
For this reason the order of the Appellate Term should be reversed, with costs, and the judgment of the Municipal Court affirmed, with costs.
Rumsey, Ingraham and Hatch, JJ., concurred.
Order of Appellate Term reversed, with costs, and judgment of Municipal Court affirmed, with costs.