Finck v. Rogers , 61 N.Y.S. 866 ( 1899 )

Leventritt, J.

The defendant successfully resisted an action for rent by proof of an alleged eviction.

The record shows that on the 27th day of September, 1898, the defendant, under a written lease for one year, commencing on the first day of October, 1898, entered into possession of an apartment on the second floor of the “ Cameron ” flats, owned by the plaintiff.

Prior to this time the defendant had for almost a year occupied another apartment on the same floor of the same building, and had had no occasion for complaint. On September twenty-seventh, the defendant, his wife and a servant moved into the new apartment. They remained but a single night, slept elsewhere the following night and began moving out the day after, alleging as a reason interference with the quiet enjoyment of the premises. This consisted of vibrations in the apartment caused by an electric dynamo located in the cellar and provided for lighting purposes. The defendant claims that the walls and floor, shook, that the chandelier rattled and that neither he nor his wife, who was a nervous, sick woman, could sleep throughout the night; that during a part of the succeeding day the same disturbances continued. On this the defendant predicated a constructive eviction. This plea should not have prevailed. We may disregard the fact that the preponderance of credible testimony was clearly with the plaintiff, who produced disinterested witnesses, a prior and a subsequent tenant of the same apartment occupied by the defendant, and they testified that, under similar conditions, the dynamo had never annoyed them, nor had they noticed any vibrations. It is not necessary, however, for the purpose of this appeal to depart from our well-settled rule not to reverse on the facts. There was error in law, as the defendant’s evidence, conceding it to be true, was insufficient to support a constructive eviction. He testified to a condition existing only for a single night and part of the following day. There is no proof whatever that this condition obtained either before or after; nor that it could not readily have been,remedied; nor that the plaintiff was advised of its prior existence. In fact, the defendant testified that when the plaintiff’s agent was informed of the vibration, he stated that he had never observed it. Nevertheless, the defendant, on the very next morning, and without giving opportunity to abate the annoyance, left the premises. In a ease similar to the one at bar, the court say: “ If, after.notice, the landlord proceeds with proper diligence to do what is necessary, he is allowed reasonable time to remedy the defect.” O’Gorman v. Harby, 18 Mise. Rep. 228. It will be found, upon examination of the authorities, that where minor annoyances have been held to justify abandonment of premises, the resulting interference with the beneficial enjoyment of the demised premises has not been limited to an isolated instance, but has been long continued. Chaplin, Landl. & Ten., 503; Cohen v. Dupont, 1 Sandf. 260; Wyse v. Russell, 16 Misc. Rep. 53; O’Gorman v. Harby, supra; Tallman v. Murphy, 120 N. Y. 345; McLaughlin v. Bohm, 20 Misc. Rep. 338. In the case last cited, analogous to the one under review, this court held, in effect, that the noise of a properly constructed and properly operated pump in the cellar of an apartment house, cannot he made the basis of a claim for eviction. In that case also the testimony showed that the vibration caused the chandeliers to rattle, crockery and glassware to fall from shelves, and that illness akin to seasickness was produced in tenant’s "wife. McLaughlin v. Bohm was properly decided adversely to the tenant in the first instance, and we are of the opinion that, on the record, the same disposition should have been made of this case.

The judgment will be reversed.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.