Chisolm v. Kilbreth — 88 N.Y.S. 364

Majority

p. 364

CHISOLM v. KILBRETH.

(Supreme Court, Appellate Term.

May 19, 1904.)

Headnote

1. Landlord and Tenant—Action for Rent—Question for Jury—Constructive Eviction.

Where, in an action for rent, defendant claimed constructive eviction by the giving of singing lessons by the tenant- of an adjoining apartment, and there was testimony on both sides as to the extent and character of the noises, the question as to whether they constituted an eviction was for the jury.

Appeal from Municipal Court, Borough of Manhattan, Tenth- District.

Action by Mary A. Chisolm against James T. Kilbreth. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.

Moen & Kilbreth, for appellant.

Bowers & Sands, for respondent.

The defense interposed in this action, brought to recover for one month’s rent of demised premises, was a constructive eviction and an abandonment of the premises prior to the month for which the rent sued for became due.

The only question in dispute was whether the giving of singing lessons by the tenant of an apartment adjoining that of the defendant was of such a character as to create a constructive eviction, and thereby justify the tenant in removing from the demised premises and refusing to longer continue payment of rent. Upon the trial there wag testimony given upon both sides as to the extent of the noises complained of; and whether they were of such a character and duration as to constitute an eviction, or whether they were of a kind that did not injuriously affect the enjoyment of the demised premises, became a question of fact to be determined by the trial judge (Hall v. Irvin, 78 App. Div. 107 , 79 N. Y. Supp. 614 ), and, he having found upon that question, his decision cannot be disturbed.

Judgment affirmed, with costs.