Tallman v. . Murphy

Bbowe, J. When the defendant rested his case and again at the close of the testimony there was a motion that the court direct a verdict for the plaintiff, which was derned and an exception taken by the plaintiff. The court instructed the jury that the evidence on the part of defendant was sufficient, if believed by them, to sustain the claim of eviction, and that it would also justify a finding that the defendant was warranted in abandoning the premises under the statute of 1860 (Chap. 345), and in such case he would not be liable for the rent. The facts of the case which the jury may be assumed to have found were as follows: The building in which the defendant was - a tenant was a large apartment-house, so *348 arranged that several rooms on one floor should constitute an apartment, and intended to furnish therein complete arrangements for the occupation of one family. The owner retained charge of, and control over everything that was common to the whole building, and of which each tenant had the use or beneficial enjoyment, such as the hallways, heating apparatus, water supply, elevators, etc. The defendant occupied the first apartment above the basement on the east side of the house. He entered into occupation October 22, 1884, and finally abandoned the premises on February 28, 1885.- In January, 1885, there was .a strong odor of coal gas in his rooms which continued more or less until he left the building. It compelled the opening of the windows, and made defendant and his wife side. The landlord’s attention was directed to it, and he promised to remedy it, but never did so. There was also smoke in the parlor, which was quite severe for a few days, and continued in .a less 'degree, while defendant occupied the apartment. The proof tended so show that the gas and smoke came through the flues from rooms occupied by other ■ tenants. Plaintiff promised to remedy it, but did not do so. There were loud explosions heard throughout the building. 'These were of frequent occurrence during the day-time and night. They were described, by witnesses, as resembling the discharge of a gun, and the boom of a cannon. One witness, who had lived in California, and experienced several shocks of earthquake, likened the noise and vibration to that of an earthquake. They caused the building to tremble and shake. Furniture was moved. Vases, and other ornaments were thrown from the mantles and shelves, and broken. Clocks stopped, and large cracks were made in the walls and ceiling. The landlord expressed to plaintiff and his wife the belief that a discharged employe had exploded dynamite in the pipes and flues of the house, for the purpose of injuring the building. Defendant and his wife were severely frightened by these explosions, and were under a well-founded apprehension that *349 there was danger in remaining in the building. On the fifteenth of February, they moved away. They returned on the twenty-eighth of February, but soon after retiring at night, a loud explosion occurred, which so frightened' them that they arose and dressed, and did not again retire, and on the following day they gave up the possession of the premises. The cause of this unprecedented condition of affairs had not been discovered at the time of the defendant’s leaving. The plaintiff had employed detectives, and endeavored to solve the mystery but had failed. Upon the trial, there was evidence that the noise proceeded from a large water tank on the roof, and was caused by the-action of the water upon sheet-iron partitions in said tank, in connection with the use of the rvater in running the elevator. During the month of February, the building was examined by examiners of the board of inspection of buildings, and pronounced unsafe and dangerous. The rear wall was settled and cracked, and window sills and lintels broken. We are of the opinion that the case was one for the consideration of the jury. The statute of 1860 referred to provides that a lessee of a building which shall, without fault or neglect on his part,. “ be so injured by the elements or any other cause as to be untenantable and unfit for occupany shall not be liable to pay rent to the lessor, and may thereupon quit and -surrender possession of the premises.” The statute contemplates an injury to the building which substantially affects the enjoyment of it by the tenant. The-evidence permitted such a conclusion by the jury in this case. The defendant testified : “ These explosions were cracking the walls and ceiling in the apartment. Those cracks were-increasing all the time, growing larger and larger. One was large enough to put in my two fingers.” Another witness, an occupant of another apartment, testified: “ These shocks and vibrations cracked the walls. There was paper on my apartment, and these cracks showed through the paper. Some of these cracks were as much as fifteen or twenty feet *350 long. In some places I could place my hand in the crack, the width of two lingers. As those explosions were repeated they would increase or grow wider.” These explosions occurred throughout the month of February. On the tenth and seventeenth of that month the building was examined by the inspector of buildings. of the city and declared to be unsafe and dangerous. The rear wall was settled and cracked. The only explanation given by the landlord was that he believed that dynamite had been exploded somewhere in the building. Under these circumstances we think that the jury were justified in finding that there was an “injury” to the building and that it was “ untenantable and unfit for occupancy.” It will be observed that the statute does not require that the building should be unsafe or dangerous, but that it should be “ unfit for occupancy ” as a result of injury. It puts upon the landlord the risk of having the premises unfit for occupation. ( Vann v. Rouse, 94 N. Y. 401.) Such injuries as are the result of failure to make ordinary repairs, when the landlord has not agreed to make them, do not come within the statute, because it was not intended to modify or change the relative duties of the parties to the lease in that respect. That is all that was necessarily decided in Suydam v. Jackson (54 N. Y. 450). There the condition of the building was the result of a failure to make ordinary repairs, and the landlord had not agreed to make them. Here the evidence tended to show, substantial injury to the building, not resulting from any fault or neglect of the tenant, and which justified the fear on his part that it was dangerous longer to remain an occupant of his' apartments. , We are of the opinion that the trial court did not err in submitting this branch of the case to the jury. A building shaken by repeated explosions which caused the walls and ceiling to crack, the plaster to fall, clocks to stop and ornaments to be broken, and which was declared by the officer of the bureau of inspection of buildings to be “ unsafe *351 and dangerous,” and the rooms of which were, at times, filled with smoke and coal gas to an extent sufficient to make the inmates sick, could hardly be called “ tenantable or fit for occupancy ” within the fair meaning of that term applied to a building of the character and purposes of the one in question. Assuming, however, that the jury might have believed that the injuries to the building were exaggerated by the defendant and Iris witnesses, and that a case did not exist which justified the surrender of the possession of the property under the statute citkd, still we are of the opinion that the evidence was such that the jury might have found an eviction. “ An eviction is defined to be when there has been an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord.” (McAdam on Landl. & Ten. 418, 419.) It is not necessary that there should be actual expulsion of the tenant from the premises. If the landlord commits or suffers acts to be committed which make it necessary for the tenant to remove, this is equivalent to expulsion. (Dyett v. Pendleton, 8 Cow. 128; Edgerton v. Page, 20 N. Y. 283; Cohen v. Dupont, 1 Sandf. 260.) The first case cited established the law in this state that if the landlord creates a nuisance in the vicinity of the demised premises or commits acts which deprive the tenant of the beneficial en joyment of the property, in consequence of which the tenant abandons the possession before rent is due, the lessor’s ■action for rent is barred. The consideration of the agreement to pay rent in such cases fails. “ If the tenant be deprived =of the thing letten the obligation to pay the rent ceases, because such obligation has its force mly from the consideration which was enjoyment of the thing demised.” (Per Spencer, Senator, in Dyett v. Pendleton, supra.) Gilhooley v. Washington (4 N. Y. 217), cited by the appellant, is not in conflict with these authorities. In that case it was not shown that the plaintiff had any connection with the nuisance which induced the defendant to quit the premises. It is not essential that the acts of the landlord should be *352 committed with intent to compel the tenant to leave the property or to deprive him of the beneficial enjoyment thereof. If they are calculated to and do make it necessary for the tenant to move they constitute an eviction. So a failure to perform the duty which the landlord owes to the tenant, and without the due performance of which the leasehold premises are not tenantable, would constitute an eviction. In such a building as the one under consideration there is very much that remains under the charge and control of the landlord. The heating of the apartments, the supply of water, all sanitary arrangements and many other things essential to the proper enjoyment of the apartments in the building by the tenants thereof, are regulated and controlled by the landlord, and he owes a duty to the tenant to see that all such matters and appliances are kept in proper order, and if he persistently neglects them, and, by reason of such neglect, the tenant is deprived of heat or water, or his apartments are filled with gas or foul odors from the same, and the apartments become unfit for occupancy, the tenant is deprived of the beneficial enjoyment thereof, and the consideration for which he agrees to pay rent fails and there is a constructive eviction. In Thomas v. Nelson (69 N. Y. 118-121), Earl, J., said: “ There was a defective fine which made the occupancy of the premises extremely uncomfortable and inconvenient, and the defendant would probably, on this account, have been justified in abandoning them as untenantable.” The defendant was, however, in that case, denied that right, as the jury found before he left the premises he had agreed, with the plaintiff, to repair the flue at the expense of the latter. (See also Alger v. Kennedy, 49 Vt. 109; Thalhemier v. Lempert, 17 N. Y. S. R. 346.) So, if the explosions proceeded from the water-tank and were of the character sworn to by defendant’s witnesses, and produced the result stated, it was clearly a nuisance, and it was the defendant’s duty to abate it and remove the cause of the trouble. The tank was a part of the building, designed and intended in its use for the accommodation of the tenants. *353 If the noises and explosions proceeded from it, the nuisance was of plaintiff’s own creation. There was ample testimony to sustain the finding that the explosion, coal gas and smoke proceeded from causes entirely under the control of the landlord and which he failed to remedy. If the jury believed the defendant’s witnesses, and we must assume they did, the evidence fully justified the defendant in the surrender of the property. We have examined the numerous exceptions taken during the trial and find none that would warrant a reversal of the judgment. The judgment must be affirmed.