Majority
p. 181(33 Misc. Rep. 113.) COOPE v. KOLLSTADE. (Supreme Court, Appellate Term. November 12, 1900.) Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.
Headnote
Landlord and Tenant—Eviction—Nuisance—Question for Jury.A pump used by the lessor, directly under that part of the demised premises occupied by the lessee, caused a vibration, and made a thumping, disagreeable noise, which could be heard all over the premises, and continued for several hours each day. Held, that the question whether the noise was a nuisance, which interfered with the lessee’s use of the premises to such an extent as to exonerate him from the payment of rent, was for the jury.
Appeal from municipal court, borough of Manhattan, Tenth district.
Action by Herbert Coope against Alfred G. Kollstade. From a judgment for defendant, plaintiff appeals.
Affirmed.
Green & Stotesbury, for appellant.
Philbin, Beekman & Menken, for respondent.
It is now well settled that a physical eviction is not necessary to exonerate a tenant from the payment of rent, but
p. 182
such exoneration follows when the landlord’s acts, though not amounting to a physical expulsion, are of so pronounced and offensive a character as to create a nuisance, which, by preventing the reasonable use by the tenant of the premises, affects directly the consideration of the contract-between the landlord and the tenant. See Sully v. Schmitt, 147 N. Y. 248 , 41 N. E. 514 . To the same effect is Insurance Co. v. Sherman, 46 N. Y. 372 , in which case it was held that any interference on the part of the landlord which impairs the beneficial enjoyment of the premises, such as the creation of a nuisance in another portion of the same building, is a sufficient disturbance to constitute an eviction. The evidence shows that there was a pump directly under that portion of the premises occupied by the defendant; that this pump caused a vibration, and made a rumbling noise, which some of the witnesses designated as a thumping, disagreeable noise, which could be heard all over the premises occupied by the defendant, and which continued for several hours each day. Whether this noise was or was not a nuisance was a question to be determined, by the jury, and therefore plaintiff’s motion to direct a verdict in Ms favor was rightly denied. There were no exceptions to the charge of the court, and therefore it must be held that there was -no error in such charge. TMs case is to be distinguished from McLaughlin v. Bohm, 20 Misc. Rep. 338 , 45 N. Y. Supp. 745 , in which case it was held that there was a question of fact as to the disturbance of the tenant’s possession, while in this case there' is no such question.
Judgment affirmed, with costs.
Cases cited
- Sully v. Schmitt 147 N. Y. 248 p. 182
- McLaughlin v. Bohm 20 Misc. Rep. 338 p. 182