Cushier v. Adams , 134 N.Y.S. 561 ( 1912 )

Lehmah, J.

The plaintiff leased the top floor of her private house to the defendant' for use as a “ private dwelling apartment.” The lease is silent as. to any supply of hot water, but, inasmuch as the fixtures were connected with the general hot water system of the house which was heated from the kitchen in the basement and was under the plaintiff’s control, a covenaiit to supply hot water might reasonably be implied. That covenant, however, would be to supply only such hot water as would reasonably be expected under the

• circumstances, viz., such supply as would be furnished ordinarily in a small private house. It would certainly be unreasonable to expect the landlord of a single leased apartment situated in his private house to keep a supply of hot water at all hours day and night, for the convenience of his single tenant. The defendant leased the apartment for one year from the first day of October and vacated the apartment on the twenty-seventh day of' May, claiming a constructive eviction because not sufficient hot water was furnished. It appears that at various times after October there was a lack of hot.water, but there is no evidence at all as to the supply during the time shortly prior to the defendant’s abandonment of the premises. Moreover, there is no sufficient explanation of the reason why defendant continued to put up with his alleged discomfort during the whole winter and found the conditions unbearable eight months thereafter. He claims that he remained there in reliance on plaintiff’s promise to remedy conditions by installing a new range which after-wards turned out to be unsatisfactory, but there is no evidence as to the time when the range was installed or the promises made upon which defendant relied. The record discloses nothing but the vaguest testimony to establish defendant’s defense and the judgment in his favor should be reversed and a new trial granted with costs to appellant to abide the event.

Guy and Bijur, JJ., concur.

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