Floyd-Jones v. Schaan ( 1908 )

BISCHOFF, J.

In my opinion, no defense was presented to the landlord’s claim for rent. The interference with the tenant’s enjoyment of the demised premises by the operation of the adjacent electric light plant was an injury to the possession, of a temporary and preventible nature, caused neither by the landlord nor by any person in privity with him, and redressible at the instance of the tenant. Bly v. Edison El. Co., 173 N. Y. 1, 64 N. E. 745, 58 L. R. A. 500. As I construe the statute (section 197 of the Real Property Law, Laws 1896, p. 589, c. 547), it has reference only to cases of actual physical destruction or injury to the demised premises, and of a permanent nature. A lease of real property would certainly be of precarious duration if the tenant were at liberty to cancel it, and abandon the demised premises, because of an interference with his possession by the preventible act of a stranger to the lease. The provisions of this section of the real property 'law have indeed been given a construction which would extend them to cases of untenantability due to causes not necessarily sudden, nor traced to the action of the elements (Tallman v. Murphy, 130 N. Y. 345, 34 N. E. 716); but no case has gone so far as to hold that where the untenantable condition of the premises is not of a permanent character, and is caused by an act of a stranger which the tenant has the exclusive right to cause to be restrained, the tenancy may none the less be terminated. Certainly, such a situation does not appear to be within the reasonable meaning of this statute, which, it may be noted, is in derogation of the common law and to be strictly construed (Tallman v. Murphy, 130 N. Y. 355, 34 N. E. 716); and to extend the statute to this case would be to give it a violent and unreasonable interpretation not called for by authority as yet announced.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.