Associates v. Purdy — 143 A.D. 119

Majority

p. 119

Realty Associates, Respondent, v. Percy B. Purdy, Appellant.

Second Department,

February 17, 1911.

Headnote

Landlord and tenant eviction — rent, when payable.

Although a lease required the tenant to admit mechanics authorized by the landlord to make improvements upon the premises, the landlord is guilty of eviction and cannot recover rent where, after the tenant had vacated the premises before the expiration of the term and had refused to allow the landlord access, a plumber sent by the landlord removed the plumbing so as to make the premises untenantable, which act was subsequently ratified by the landlord. This

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because the covenant to.admit mechanics did not contemplate such repairs as would make the premises uninhabitable.

A tenant may pay rent at any time during the day upon which it becomes due, and hence, where the building was dismantled by the landlord on that day, the eviction occurred before the time of payment had elapsed.

, Appeal by the defendant, Percy B. Purdy, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3d day of May, 1910.

Allan C. Rowe, for the appellant.

Lyman C. Norris, for the respondent.

Purdy was plaintiff’s tenant, under a lease expiring at the end of September. In August he removed his effects from the premises,' but refused to allow the plaintiff to enter for the purpose of repairs, inasmuch as plaintiff would not abate the rent for September. The case was submitted upon stipulated facts. On the first of September the plaintiff, having caused keys to be made, authorized a plumber to enter the premises for the purpose of examining the same, in order to bid upon specifications for repairs. Thereupon such person, without plaintiff’s preliminary authorization, removed the •“ nickel fixtures in the bathroom and the nickel fixtures of and lead work under two basins on the'second floor,” but later the plaintiff let the contract for the plumbing, which involved such removal. On September fifth the gas fixtures were removed, and thereafter from time to time during the month of September the premises were dismantled in such manner as to preclude enjoyment thereof by the tenant. The lease provided as follows: “ And the tenant covenants and agrees that he will: * * * 6th, Admit mechanics who are authorized to make any improvements in, to, or upon said premises.” The tenant in writing refused to admit mechanics for the purpose of repairs, and thereupon the landlord caused entry to be made without permission. It is unnecessary to decide whether the landlord could rightfully enter where the tenant wrongfully refused it for proper purposes, inasmuch as it was the intention of the landlord to make such repairs as would preclude the tenant’s enjoyment during the month, and he fulfilled his intention by repairs destructive of the tenancy. The stipulation in the lease did not con

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template such repairs as would make the premises wholly unhabitable, and the landlord’s action was tantamount to an eviction. Plaintiff’s broad contention is that under the lease he could do this very thing, and he did do it. The rent was payable on the first day of September, but on that day the plumber, let in by the landlord, initiated work which, although not authorized at the time, was thereafter ratified, and followed by the dismantling of the premises. As the tenant was privileged to pay the rent at any time on September first, the eviction occurred before the time of payment had elapsed. Moreover, on September fifth, additional elaborate repairs, set out in the statement of facts, were begun, and they fully indicate that the landlord purposed on September first and the following days in the month to preclude the use and occupation of the premises by the tenant.

Therefore, the judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Carr, Woodward and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.