Jockel v. Haubold ( 1915 )

PAGE, J.

This was an action to recover rent for premises after ihe defendant had removed from same, claiming to have been constructively evicted therefrom. The defendant remained in the premises, relying upon the promise of the agent of the landlord to rectify the cause that rendered the premises untenantable by reason of insufficient heat. When the tenant was informed that the landlord would not supply larger radiators, the tenant moved from the premises. The learned trial judge directed a verdict in favor of the plaintiff, upon the theory that the defendant waived, as a matter of law, his right to claim a constructive eviction by remaining in possession of tire premises.

We have frequently held that the question as to whether the tenant exercised his option to remove from the premises within a reasonable time was a question of fact, to be determined by the jury with reference to the circumstances of the particular case. N. Y. State Investing Co. v. Wolf, 84 Misc. Rep. 68, 145 N. Y. Supp. 945. The case should have been submitted to the jury for their determination.

A direction of the verdict by the trial judge was erroneous, and the judgment must be reversed, and a new trial granted, with $30 costs to the appellant to abide the event. All concur.