Pollak v. Stolzenberg — 110 N.Y.S. 224

Majority

p. 224

POLLAK v. STOLZENBERG.

(Supreme Court, Appellate Term.

May 15, 1908.)

Headnote

Landlord and Tenant—Action for Rent—Constructive Eviction.

Where a tenant covenanted to make and do all repairs required to walls, ceilings, etc., and there was no express or implied warranty by the landlord that the premises were fit for occupation when leased, the fact that a portion of the ceiling in the kitchen of the rented premises fell, and that portions of the ceiling in other rooms were loose and cracked, did not constitute a constructive eviction, which would be a defense to an action for rent.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 765.]

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action for rent by Marcus Poliak against Franz Stolzenberg. From a Municipal Court judgment for defendant, plaintiff appeals.

Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.

Arnstein & Levy (Harry A. Levinson, of counsel), for appellant.

This action was brought to recover for rent for the month of November, 1907. The defense relied upon was an eviction. The parties had a written lease, in which the defendant covenanted to “make and do all repairs required to walls, ceilings,” etc., belonging to the premises. The alleged eviction consisted in the falling of a portion of the ceiling in the kitchen, and there was some proof on the part of the defendant that portions of the ceiling in some of the other rooms were loose and cracked. These facts entirely fail to constitute the defense of eviction. There was no express or implied warranty on the part of the landlord that the premises were fit for occupancy when leased, and the tenant obligated himself to do all the necessary repairs. The judgment in favor of the tenant must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.