Amsterdam Realty Co. v. Johnson

• Court: Connecticut Supreme Court
• Writing for the Court: HAINES, J.
• Citation: Amsterdam Realty Co. v. Johnson, 115 Conn. 243, 161 A. 339 (Conn. 1932)
• Decision Date: 05 July 1932
• Parties: AMSTERDAM REALTY CO. v. JOHNSON.

161 A. 339

115 Conn. 243

AMSTERDAM REALTY CO. v. JOHNSON.

Supreme Court of Errors of Connecticut.

July 5, 1932

Appeal from Court of Common Pleas. New Haven County; Walter M Pickett, Judge.

Action by the Amsterdam Realty Company against Frank M. Johnson for the recovery of rentals of leased premises, wherein defendant filed a counterclaim. From the judgment, plaintiff appeals.

No error.

Albert M. Herrmann, of New Haven (Samuel R. Aaron, of New Haven, on the brief), for appellant.

Frederick O. Hesselmayer, of New Haven. (Samuel O. Clark. Jr., and Thomas A. Grimes, both of New Haven, on the brief) for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, J.

The plaintiff owned and managed an apartment house in the city of New Haven, and leased to the defendant for two years, beginning October 1, 1929, one of the thirty-eight apartments therein, at $140 per month, payable in advance. The defendant entered into possession of the apartment, and paid the rent each month as required by the terms of the written lease, the last payment being made March 1st, 1931, for that month, and later that month vacated the premises.

The complaint is in two counts; one for the rent payable on April first, and the other for the rental for eighteen months of a maid's room, being $180. The trial court found for the defendant on the second count, and no question is now made in relation thereto.

The answer sets up that the apartment was infested with vermin for considerable periods of time, and that there was an interference with the quiet enjoyment of the premises by excessive and unusual noises in other portions of the building; in permitting strangers and others to enter and congregate in the building to the disturbance of the occupants; and, more particularly, a failure by the plaintiff, upon reasonable and repeated requests, to properly and adequately heat the apartment, as required by General Statutes, § 2659; the latter causing not only discomfort but sickness in the defendant's family. There was also a counterclaim; but as to this the court found for the plaintiff.

The defendant contended at the trial that the cumulative effect of these acts and omissions of the plaintiff was such as to amount in law upon the vacating of the apartment, to a constructive eviction of the defendant, and that the plaintiff breached the terms of the lease, and thus justified the defendant in vacating the apartment and his refusal to pay further rent therefor. The trial court sustained the defendant's contention.

The plaintiff first asks certain changes in the finding. The trial court found, in substance, that the heat in the apartment was inadequate, and particularly so in February and March, 1931; that the defendant had complained from time to time, and, though the plaintiff made repeated promises to remedy the defect, did not do so; that the defendant accepted the promises for some months, and, wishing to be fair to the plaintiff, endeavored unsuccessfully to find another tenant to take the apartment, but on March 11th notified the plaintiff in writing that he would terminate the lease and vacate the apartment before April first. It was found that the central heating system for the building and the fuel therefor was adequate, but the valves on the radiators in the defendant's apartment were apt to, and were once found to, be clogged with oil and sediment, preventing the steam from entering the radiators, so that for considerable periods during the day and evening the temperature in the apartment ranged between sixty-two and sixty-six degrees only, and the defendant's family and his guests were often compelled to wear outer or extra clothing to keep comfortably warm: that it was reasonably possible for the plaintiff to have obviated this condition, but it was not done; that the heat was sufficient for the first year of the defendant's occupancy, but from the onset of the cool weather in the fall of 1930 the conditions above referred to caused the defendant to complain to the plaintiff many times both verbally and in writing, but without permanent improvement; that the defendant was greatly annoyed by musical instruments and other distracting noises in other portions of the building, which the plaintiff permitted to continue.

These findings go to the heart of the appeal, and we have examined the certified evidence with care and attention to the specific facts found, but are unable to find any of importance which were not directly testified to or reasonably inferable from the testimony. We cannot disturb the factual situation disclosed by the record.

The other assignments of error present two questions for our consideration, viz., whether there was a constructive eviction of the defendant, and whether the plaintiff violated the covenants in the lease. A third and related question is whether the defendant, by his delay in vacating, waived his claimed right to do so, in any event.

It is common knowledge that there has been a great increase in recent years of tenants in large apartment houses with a central heating system, and wherein the tenants are supplied by the landlord with heat, light, hot water, refrigeration, and other aids to comfortable living theretofore supplied by the tenant himself. The need of insuring adequate protection to the comfort and health of tenants under these...