Majority
p. 209GOLDSMITH et al. v. CROWLEY et al. (Supreme Court, Appellate Term. May 12, 1909.)
Headnote
Landlord and Tenant (§ 190[1] )—Eviction—Rent Already Accrued.Eviction is no defense as against rent due at the time thereof.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 765-769; Dec. Dig. § 190.[1] ]
On reargument.
Judgment below reversed, and new trial ordered.
For former opinion, see 115 N. Y. Supp. 140 .
The answer admits, by not denying, the plaintiffs’ allegation in the complaint that the rent for which this action was brought is due and unpaid. The defendants’ affirmative defense is a constructive eviction. The testimony shows that, if any eviction occurred, it was not until after a portion of the rent became due and payable, and therefore judgment should not have been rendered for the defendants, as it has repeatedly been held that the defense of eviction is not available as against rent remaining due and unpaid at the time the eviction takes place.
Judgment reversed, and new trial ordered with costs to appellants to abide the event.