Gottesman v. Gerber , 23 Misc. 2d 893 ( 1960 )

Per Curiam.

The trial court having found that the tenant was excluded from possession of the garage, there was an actual partial eviction which suspended the entire rent during the period of such exclusion (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370; Libby Props. v. Gross, 76 N. Y. S. 2d 568). It was therefore error to make a final order in favor of the landlord.

The final order and judgment should be reversed, with $30 costs to tenant appellant and final order directed for tenant dismissing the petition and awarding judgment on the counterclaim for $42.30 in favor of the tenant, with costs, Landlord’s cross appeal dismissed as academic.

Concur — Hofstadter, J. P., Steuer and Tilzer, JJ.

Final order and judgment reversed, etc.