101 Misc. 547 | N.Y. App. Term. | 1917
Lead Opinion
The action was brought for rent for the months of July, 1915, to February, 1916, on a written lease of the fourth loft of a building in Houston street, in the borough of Manhattan. The lease was for one year from the 1st of February, 1915.
The answer of the defendants admits that the rent sued for has not been paid. It sets forth, as a sepa
The clause in the lease relating to the elevator reads as follows: “ And the parties of the second part are to have steam for heating said fourth loft and the use in common with the other tenants of the elevator provided for the building; the parties of the first part to use due diligence in furnishing said steam for heating the premises hereby demised and power to operate the elevator during the usual business hours, except Sundays and holidays, and one-half hour during the noon hour, but do not guarantee an uninterrupted supply.”
The jury brought in a verdict for the defendants, but, on motion of the plaintiffs, it was set aside. The court assigned no reasons for its decision. It is undisputed that the elevator service was suspended at times for repairs.
On behalf of the plaintiffs, Walker was called as a witness. He admitted that repairs had been necessary, but said they were promptly made. He received no complaints from the month of February to June. The elevator was not stopped two weeks in May, but it
If the testimony of the defendants was true, they establish their defense of constructive eviction, and it was for the jury to determine whether it was true. Lawrence v. Mycenian Marble Co., 1 Misc. Rep. 105; Hayden Co. v. Kehoe, 177 App. Div. 734. According to their testimony, the defendants acted with reasonable promptness in leaving the premises. Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109. They left on June 15, 1915, and the elevator had stopped for ten days in the preceding month according to their statements. We think that a question of fact for the jury was presented and, it having resolved it in favor of the defendants, the verdict should not have been disturbed.
Order reversed, with thirty dollars costs, and verdict reinstated, with costs.
Obdway, J., concurs.
Concurrence Opinion
(concurring). I concur on the ground that as the order setting aside the verdict does not specify the grounds upon which it is granted and no opinion was delivered (See Gen. Buies of Practice, rule 3), rule 31 of the General Buies of Practice compels the inference that it was granted “ on the exceptions taken during the trial,” and'no questions of law appear in the record to warrant any disturbance of the judgment.
Order reversed, with costs.