There is no weight to the defendant’s contention that there is a nonjoinder of the parties plaintiff. The documentary evidence shows conclusively that the plaintiff is the only party in interest. Nor is there any weight in the defendant’s claim that he was evicted from the premises. As a matter of fact, he was not either actually or constructively evicted from the premises or any portion of them. He occupied them and should pay the rent.
It is well settled in this State that the defense of constructive eviction is not available to the tenant without a surrender of the premises. Boreel v. Lawton, 90 N. Y. 293.
Judgment reversed and new trial ordered, with costs.
Present: Truax, P. J., Scott and Dugro, JJ.
Judgment reversed and new trial ordered, with costs.