Durea v. Arbor Co.

OPINION

PER CURIAM

The amended answer of plaintiff in error was in effect a plea of constructive eviction, due to the failure of the plaintiff to furnish sufficient heat and also that smoke emanated from the furnace and caused the suite to become untenable. After trial judgment was entered in favor of the lessor, who is defendant in error in this case.

We have perused the record and we find therein ample evidence supporting the plea of the plaintiff in error that there was, because of the failure to furnish heat, and because of the smoke which permeated the suite, a constructive eviction, such as to justify the tenant in the act of vacating the premises during the life of the lease.

Without entering into a detailed discussion of the evidence, it is sufficient to say that the evidence offered in behalf of defendant in error to support her plea of constructive eviction, was at no time met in any direct manner by way of negativing the evidence offered in her behalf.

Much stress is laid upon circumstances and alleged contradictions in the testimony of plaintiff in error. It is claimed in behalf of the defendant in error that the reason plaintiff in error vacated the premises, was not the failure of the landlord to furnish heat, nor was it an accumulation of smoke, but instead the same was due to the failure of the landlord to reduce the rent, as requested by her. The direct evidence contained in the record bearing upon the point clearly shows that many complaints were registered by plaintiff in error against the conditions she is complaining of.

Upon the entire record it is our opinion that the judgment of the Municipal Court is manifestly against the weight of the evidence. The judgment is, therefore, reversed and the cause remanded for further proceedings according to law.

LIEGHLEY, PJ, and McGILL, J, concur in judgment.