Majority
Summary proceedings by a landlord for the possession of an apartment in a multiple dwelling house because of the tenant’s failure to pay rent for the months of May, June and July, 1936. The defense was a counterclaim based on a claimed constructive eviction owing to noises created by the dog of a tenant in an adjoining apartment. The justice of the peace made a final order awarding the landlord the reserved rent for the three months less ten dollars a month, totaling thirty dollars damages, in default of payment of which possession of the premises was awarded to the landlord. On an appeal to the County Court the order was reversed and a new trial ordered in the Justice Court. The tenant appealed to this court, asserting that the damages were properly based on a claimed constructive eviction. It appeared that the tenant had continued in possession of the premises. Order of the County Court of Westchester county unanimously affirmed, with costs. No opinion. Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ.