118 East Fifty-Fourth Street Co. v. Lawlor

BIJUR, J. Plaintiff sued for rent of an apartment after March, 1914. Defendant pleaded a constructive eviction. The testimony was to the effect that during the entire time of occupancy, from September, 1913, to March, 1914, the paper and decorations on the walls of the living room (parlor) and defendant’s bedroom kept peeling off and becoming discolored. Serious dampness showed on the walls; indeed, they were practically wet and mold developed on the walls behind the pictures. The landlord kept constantly promising to remedy the defect and made efforts to do so, which were unavailing. There was also a lack of sufficient heat. No testimony in rebuttal was offered. The court directed a verdict not on the ground urged by the plaintiff, namely, that “retention of the premises from September, 1913, to March, 1914, precluded the defendant from maintaining the defense of constructive eviction,” probably because such continued occupancy was explained and excused by the landlord’s continued promise and efforts to repair. See Marks v. Dellaglio, 56 App. Div. 299, 67 N. Y. Supp. 736; Graecen v. Barker (Sup.) 130 N. Y. Supp. 141. The court ruled, .“Your (defendant’s) proof in this case has not sustained the statement of facts.” This statement of facts, as given by the learned court, was “that the premises became so damp and saturated with water that the decorations rotted off and the premises were rendered unfit for habitation, unsanitary, and dangerous to defendant’s health.” While it is true that defendant did not adduce any medical testimony to the precise point of the injury to her health, the testimony clearly shows the premises to have been unfit for habitation in the usual sense of that term and unsanitary as a matter of common knowledge. Plaintiff should have been put to its rebuttal, and the issue of fact submitted to the jury. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.