Donovan v. Koehler , 103 N.Y.S. 935 ( 1907 )

Rich, J.:

In June, 1905, the plaintiff leased to Charles Koehler under a written lease the first floor flat in plaintiff’s house on Bath avenúe for the period of one year from the twentydirst day of June, at the yearly rental of $264, payable $22 monthly in advance on the twenty-first day of each month, and defendant became surety for the payment of the rent. The lease contained a covenant that the tenant should peaceably and quietly have; hold and enjoy the premises. He entered into possession June twelfth and continued to occupy the flat until about the first of November following, when he vacated the premises, having paid the rent to October twenty-first. This action was commenced February 7, 1906, to recover the rent for the months of October, November, December and January, ■ and plaintiff has a judgment for eighty-eiglit dollars and costs, from which this appeal is, taken. A few weeks after Koehler moved into the flat, plaintiff, who kept a saloon on the ground floor of the premises, opened a public bowling alley directly under the rooms occupied by him, which were connected with the saloon. The evidence tends to show that the' bowling alley Was used all day and until late at night, sometimes as late as one or two o’clock in the morning, to the annoyance of Koehler and his family. His wife described the condition as being intolerable and testified that her children could not sleep at night, which is hot surprising. We think that in maintaining this bowling alley plaintiff created such a nuisance as to make it impossible for the tenant to peaceably arid quietly hold and,enjoy the demised premises, and liis act constituted an eviction.. The evidence is sufficient to justify a finding that the tenant quit the premises in consequence of this eviction

In fact, after a, careful reading of the evidence, we are Unable to reach any other conclusion.

It has been held,' as stated by Church, Ch. J. (Home Life Ins. Co. v. Sherman, 46 N. Y. 370, 372), “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, or the like, is a sufficient disturbance of possession to constitute an eviction. (20 N. Y. 281; ^* Dyett v. Pendleton, 8 Cow. 727, and cases there cited.) ” The learned justice presiding in Municipal Court has held that to constitute eviction as a defense ■ it must occur before the rent claimed becomes due, and cites Pearson v. Gillotte (15 N. Y. St. Repr. 395) and Klinker v. Guggenheimer (43 Misc. Rep. 394). This is undoubtedly the rule, but in .the case at bar at the. time of the eviction .but one month’s rent ivas due, and as to.the rent to become due after that time the defense was valid.

We think the judgment should be modified by reducing the recovery from eighty-eight dollars to twenty-two dollars, and as modified affirmed, without costs.

Hirsohberg, P. J., Hooker, GayNor and Miller, JJ., concurred. -

Judgment of the Municipal Court modified in accordance with. ■ the opinion of Bioh, J., and as modified affirmed, without costs: