Carter v. Byron — 1 N.Y.S. 905

Majority

p. 905

Carter v. Byron.

(Supreme Court, General Term, Second Department.

June 25, 1888.)

Headnote

Landlord and Tenant—Action eor Eviction—What Damages not Excessive.

A dwelling-house and lot of land, 50x105 feet, had been leased for one year, for laundry purposes, at a rental oí S20 per month. In the middle of the second month the landlord erected a new fence around the lot, cutting ofi 17x105 feet of it, and destroying four of the five clothes-lines of the tenant. At the time of the. trial of

p. 906

the action against the landlord for an eviction the tenant had already paid $160 rent, under the lease. Held, that a verdict of $200 damages for the eviction was fairly warranted.

Appeal from Westchester county court; Isaac M". Mills, Judge.

Action by George C. Carter against John H. Byron for an eviction. Defendant appeals from a judgment in favor of plaintiff and from an order denying a new trial.

Argued before Barnard, P. J., and Pratt, J.

P. L. McLellan, for appellant. Sanford c6 Stilwell, for respondent.

The plaintiff hired of the defendant a dwelling and lot, 50x105 feet, for one year, from the 1st of April, 1887, to the 1st of April, 1888, at $20 per month, payable in advance. About the middle of May, 1887, the defendant erected a fence in front of the premises in the place of the old fence, but-cut off 17x105 feet from the lot leased to plaintiff. The premises were leased for laundry purposes, to the knowledge of the landlord. The cutting off the land in question destroyed four out of the five lines used by the plaintiff for his business in drying and bleaching clothes. The plaintiff protested against the trespass, but it was carried out, notwithstanding his protests. He sought to. hold back the rent because of the fencing away of his land, but proceedings were taken to dispossess him, and he paid the rent under an agreement with the plaintiff’s agent that the only way to do was to pay the rent, “and proceed against” the defendant for the wrong done. Upon the trial, the only question of fact presented was whether or not the plaintiff consented to the building of the fence when it was built. The jury have found that he did not, and this agrees with the evidence. The only consent, it is apparent, was that a new fence be put in place of the old one, and that he should still have-the 50x105 feet. The damages are not so clearly proven to the amount found, but still, I think, sufficiently, under the circumstances of the case. The rent was $20 per month, of which eight months had been paid. The laundry business had been destroyed in efficiency by four-fifths. The amount of the loss is not specifically proven. The rent could not be collected while an eviction of' part of the premises existed. The plaintiff is not bound to vacate the premises. He holds them by agreement, and can stay, relying upon his agreement, and recover damages if the agreement is broken. A wrongful eviction from part of the premises suspends the rent. There can be no apportionment. The whole rent is suspended until possession is restored. Christopher v. Austin, 11 N. Y. 216 . The trespass was willful. It was done in defiance of the plaintiff. The premises were destroyed as laundrying premises. One hundred and sixty dollars rent had been paid. The amount of the verdict of $200 was therefore fairly proven. Judgment affirmed, with costs.

Pratt, J., concurs.

Cases cited

Christopher v. Austin 11 N. Y. 216 N.Y. p. 906