141 N.Y.S. 863 | N.Y. App. Term. | 1913
Defendant, a tenant from year to year, was sued for the last month’s rent of a two-years’ occupancy of a flat in • plaintiff’s apartment house which he abandoned just prior to the commencement
Shortly after having first observed them the defendant notified the landlord, and it appeared upon investigation that the bugs came from the flat underneath defendant’s. That flat was then occupied, but soon after became vacant, and the landlord employed an “ exterminator,” who endeavored to drive the bugs both from the defendant’s flat and the one underneath, but without success; and despite the persistent efforts of this trained “ exterminator,” coupled with those of the landlord, as well as the defendant and his wife and painters and decorators, the bedbugs continued to increase, befouling the walls, emitting odors and biting the occupants, and exhibiting in their migrations a tendency to abide in the defendant’s flat, probably because there were persons dwelling there. Such, in brief, is the proof, and so it may be said that the defendant’s flat was infested with bedbugs without his fault; and, as the court below has found a constructive evictibn, can it be assumed on appeal that the premises were rendered untenantable and that the landlord must bear the loss of the rent?
Observing the limitations placed by the Appellate Division upon the case of Jacobs v. Morand, as to bugs within the apartment which can be dealt with by the tenant himself, and applying the language of Mr. Justice Clarke, who wrote for the court in Barnard Realty Co. v. Bonwit, we have reached the conclusion that,
The proof here shows such a condition as amounted to an insufferable nuisance, and where its existence in an apartment house is in nowise attributable to the fault of the tenant, but arises and is due to conditions in another part of the same building into which the landlord may go and apply a remedy, if remediable, the tenant must be deemed to have been precluded from a beneficial enjoyment of the premises and his abandonment thereof bars the lessor’s action for the recovery of rent. Considering the landlord’s control over the vacant flat underneath for a period of about two months, and the defendant’s eagerness to afford him every opportunity and aid to rid the latter’s flat-of the bugs, their presence cannot be said, as a matter of law, not to be due in some measure to the landlord’s fault, or, at least, to his inability to continue the habitableness of the defendant’s dwelling place. “An eviction depends upon the materiality of the deprivation. If trifling, and producing no substantial discomfort or serious inconvenience, it will be disregarded and will not afford cause for the termination of the relation of landlord and tenant.” ■ Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 110.
Here the deprivation was most material. It was by no means trifling, and not only did it produce substantial discomfort and severe inconvenience but it amounted to an intolerable state. Whether or not the deprivation is material is a question of fact, and that having been found below in favor of the defendant the judgment should be affirmed, with costs.
Crane and Kelby, JJ., concur.
Judgment affirmed, with costs.