Majority
p. 264Marie S. De L. Wyse, Ayp’lt, v. Walter P. Russell et al., Resp’ts. (Supreme Court, Appellate Term, First Department, Filed Feb'ry 26, 1896.)
Headnote
Landlord and tenant—Eviction.Where a lessor, before the expiration of the term, of the lease, makes a violent verbal and physical attack on one of the lessees, and the lessees • then give nolice of their intention to terminate the tenancy, and the lessor expresses her determination that they “ mast go” and ilie premises are abandoned at the end of the month in which the notice was given, up to which time the tent had been paid in advance, there is a constructive eviction of the lessees by the lessor.
Appeal from a judgment in favor of plaintiff,
R H. Ohanning, for app’lt; Thomas 0. O’Sullivan, Robert D. Petty and Gilbert D. Lamb, for resp’ts.
The defendants are husband and wife, and, tegether, occupied rooms in the plaintiff’s house, under a written lease; but, having left the premises prior to its expiration, this action was brought to recover the rent claimed to have thereafter accrued. The defenses litigated were eviction and a cancellation of the contract, and the justice below found in favor of the defendants. The record satisfies us that this conclusion was not incorrect, since, while there was the customary conflict of evidence as to the main facts, ample grounds for finding a constructive eviction appeared. It appears, according to the defendants’
p. 265
evidence, which the justice was authorized to credit, that the plaintiff, who resided continuously upon the premises, was a person of hasty temper, prying and officious, and rendered the condition of tenancy, through unreasonable demands and repeated discourtesy, undesirable, it" not unbearable. The culmination of the difficulties was reached during the last month of the defendants’ occupancy, when a violent attack, not only verbal but physical, was made by the plaintiff upon Mr. Bussell. Thereupon notice was given of the defendants’ election to terminate the tenancy. The plaintiff expressed her determination that they “ must go,” and the premises were abandoned at the end of that month, up to which time rent had been paid in advance. Upon this state of facts, if there were not a good defense of constructive eviction, through the lessor’s breach of the covenant of quiet and peaceable enjoyment, that covenant might have been omitted from the lease in question. The case falls most fittingly within the ruling of Cohen v. Dupont, 1 Sandf. 268 , which was, indeed, a case not so strong for the tenant as the present, since there no actual violence was indulged in by the landlord, a series of minor annoyances alone being held to constitute an eviction. See, also, Sully v. Schmitt, 147 N. Y. 248 ; 69 St. Rep. 527 .
Judgment affirmed, with costs.
Cases cited
- Sully v. Schmitt 147 N. Y. 248 p. 265