Graecen v. Barker

BIJUR, J. Plaintiff sued the defendant tenant for the balance of unpaid rent of an apartment. The defense was constructive eviction by reason of alleged unendurable noises due to defective water pipes. Defendant entered into occupation of the premises early in November, 1909, and abandoned them on March 9, 1910. In rendering his decision the learned trial judge said: "I am of the opinion that the retention of the premises for such a period after the observation of the annoyance was a confirmation of the tenancy, and must be treated as an election by the tenant to perform the covenants of the lease and retain its benefits.” Defendant’s evidence, however, is to the effect that she was making continual complaint, and that continued efforts were being made to remedy the defect, until finally, about February 10, 1910, an expert was called in who condemned the entire piping; that she then waited to see whether permanent repairs were to be made, and, when they were not, she surrendered the premises and moved out.- Under such conditions, it cannot be held that the tenant waived any rights in the premises, but, on the contrary, that the basis for a constructive eviction continued, and was renewed after each monthly payment of rent. Krausi v. Fife, 120 App. Div. 490, 105 N. Y. Supp. 384; Marks v. Dellaglio, 56 App. Div. 299, 67 N. Y. Supp. 736. The tenant was in all fairness bound to give the landlord a reasonable time to repair the defect (see O’Gorman v. Harby, 18 Misc. Rep. 228, 41 N. Y. Supp. 521), and she should not be prejudiced by the patience which she manifested in that regard. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.