Garrison v. Hutton — 118 A.D. 455

Majority

p. 455

Edwin Garrison, Appellant, v. Lester Hutton and Robert K. Hutton, Respondents.

Third Department,

March 13, 1907.

Headnote

Landlord and tenant — breach, of covenant for quiet enjoyment—when landlord liable.

la an action by a tenant against his landlord for the breach of a covenant for quiet enjoyment it appeared that the keys of the building were by consent left with third persons for delivery to the plaintiff, hut he could not obtain the keys. It appeared moreover that the landlord refused possession unless the tenant agreed to pay half of the expense of repairing frozen water pipes.

Held, that a reversal of judgment for damages for breach of covenant was not warranted.

Appeal by the plaintiff, Edwin Garrison, from an order of the County Court of Hlster county, entered in the office of the clérk of said county on the 7th day of March, 1906, reversing a judgment of the City Court of the city of Kingston in favor of the plaintiff and granting a new trial.

N. Frank O'Reilly and John D. Eckert, for the appellant.

Charles W. Walton, for the respondents.

The unchallenged facts are that the defendants leased to the plaintiff the first and second floors of their building for five months from December 1, 1904, at a monthly rental of seventy dollars, ■ payable in advance ; that the first month’s rent was paid; that the lease was under seal, and embraced in it was a covenant that the plaintiff shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid.” It appears that it was understood and agreed that the keys would be left next door with some Italians, and would be there when the plaintiff wanted them; that the plaintiff made repeated efforts to obtain the keys, but was unable to do so or gain possession, of the premises.

It appears by the evidence of the plaintiff that on the twenty-fifth day of December one of the defendants said to him that the plumbing was frozen up and the expense would be $150, and that “ "We cannot afford to let you go in there unless you pay half the expenses of this plumbing,” and that the defendants refused to let him in unless he paid one-half of the plumbing bill. The testimony of the plaintiff as to the efforts made to obtain possession was corroborated, by the evidence of other witnesses, and we are unable to agree with the learned county judge in the statement that it was vague, unsatisfactory and contradictory. There was a conflict of evidence upon this question and as to whether the defendants refused to permit the plaintiff to occupy the premises, but wé think the evidence was at least as strong and convincing in behalf of the plaintiff as of the contesting defendants. However that may be, there was not such a strong preponderance of proof in favor of the defendants as to warrant a reversal as against the weight of evidence under the rule laid down in Murtagh v. Dempsey ( 85 App. Div. 204 ).

It is true that a- covenant for quiet enjoyment imports no warranty, express or implied, asrespects the acts of strangers (Gardner v. Keteltas, 3 Hill, 330 ),. but it is well settled that if the lessor himself denies the lessee’s right'and refuses to permit him- to occupy the premises, or if he is directly connected with the withholding' of the property, the lessee may-bring his action for the damages sustained. (Trull v. Granger, 8 N. Y. 115 .)

p. 457

The order of the County Court should be reversed and the judgment of the City Court affirmed, with costs in this court and in the County Court.

All concurred.

Order of the County Court reversed and the judgment of the Justice’s Court affirmed, with costs in this court and in the County Court.

Cases cited

Murtaugh v. Dempsey 85 App. Div. 204 N.Y. App. Div. 1903-06-30 p. 455
Trull v. Granger 8 N. Y. 115 N.Y. p. 455