Bon v. Watson — 24 N.Y. St. Rep. 113

Majority

p. 113

Isidore M. Bon, Pl’ff and Resp’t, v. George V. Watson, Def't and App’lt.

(City Court of Brooklyn,

General Term,

Filed April 22, 1889.)

Headnote

1. Landlord and tenant—Removal by tenant before expiration of term—What till justify—Laws I860, chapter 345.

A lessee moved from the premises during Ms term, for the reason that the cellar became flooded. He knew when he leased the premises, and before the rent had been agreed upon, that the cellar was damp and liable to be overflowed at times, and took the property subject to the annoyances incident thereto. Held, this did not relieve Mm from liability for the rent for the balance of the term, and that chapter 345 of Laws of 1860, has no application, but reaches a case oMy where the premises arc injured during the term.

Johnson & Lamb,' for resp’t: Thos. H. Barowsky, for app’lt.

This action was brought to recover the rent of a house on Union street, in this city, from August 1, 1887, to May 1, 1888, and the defendant, in his answer, admitted that he leased the same for one year from May 1, 1887, and alleged that he continued in possession until about August one, when he moved out, for the reason that such premises, without fault on his part, became untenantable on account of water entering the cellar. A verdict was directed for the plaintiff at the trial term, and, from the judgment entered thereon, this appeal was taken.

The defendant took possession about May 1, 1886, under a lease for one year, and, before entering, discovered the. cellar was damp. It also appears that water, at times during the year, came in after a rain, and on two occasions, men had to be employed to remove the same. When the lease was renewed, Mr. Bon agreed verbally to keep the cellar dry, but the defendant did not set up in his answer any counterclaim, or ask for affirmative relief, relying solely on the statute of 1860. (Chapter 345.) He knew that the cellar was liable to be flooded, before he renewed the lease, and he also knew such fact before the first lease was made, and it may be fairly claimed that he obtained the premises at a less rent for such reason. The floods were

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undoubtedly more severe in the second year than in the first, but a tenant, when he takes a building- with a damp cellar, with full knowledge of the fact before the rent is agreed upon, cannot complain that the premises are not tenantable for such reason. A landlord can lease premises with a cellar which is full of water during the entire term, and the tenant who takes the same must expect to be subject to the annoyances incident thereto. Chapter 345 of the Laws of 1860, reaches a case only where the premises are injured during the term, and has no application in the present case.

The counsel for appellant argues that the same cause of flooding did not exist during the second term, as the first. We see no proof of the cause during either year. The defendant was told, when he signed the original lease, that the water came in through the “ light holes,” but his experience seems to show that the cause was not detected, for everything was done to prevent water entering the cellar, and yet the efforts of the landlord in that direction accomplished nothing.

It is not necessary to consider the other question, whether, in any case, the Law of 1860, gives a tenant the right to abandon the demised premises if the cellar is flooded during the term.

Judgment affirmed, with costs.

Yak Wtok, J., concurs.