Gans v. L. Olchin & Co., Inc.

• Decision Date: 30 April 1929
• Citation: 109 Conn. 164,145 A. 751
• Parties: GANS v. L. OLCHIN & CO., INC.
• Court: Connecticut Supreme Court

145 A. 751

109 Conn. 164

GANS v. L. OLCHIN & CO., INC.

Supreme Court of Errors of Connecticut.

April 30, 1929

Appeal from Court of Common Pleas, Fairfield County; E. Earle Garlick, Judge.

Action to recover rent by Lena Gans against L. Olchin & Co., Inc. in which defendant filed a cross-complaint for damages caused by its eviction by plaintiff, brought to the court of common pleas in Fairfield county and tried to the jury. Verdict for defendant on cross-complaint for $500, plaintiff's motion to set aside the verdict was granted, and defendant appeals from the granting of the motion and bill of exceptions by plaintiff. Error; judgment to be entered upon verdict for $280.

Brien McMahon, of South Norwalk, for appellant.

Robert R. Rosan, of Port Chester, N. Y., for appellee.

Argued before WHEELER, C.J., and HAINES, HINMAN, BANKS, and JOHN RUFUS BOOTH, JJ.

WHEELER, C.J.

We take up first the appeal from the granting of the motion to set aside the verdict. The complaint alleges that plaintiff and defendant entered into a lease of plaintiff's loft in Portchester, N. Y., for the manufacture of dresses for two years from March 1, 1925, at a rental of $55 a month for the first year, and $60 a month for the second year, payable in advance on the first day of each month; that defendant continued in possession until on or about June 1, 1926, at which time it abandoned the premises leased, and has failed to pay the rent therefor since April 1, 1926; and that although plaintiff has endeavored to relet these premises she has since been unable so to do. The defendant denied the abandonment on June 1, 1926, the failure to pay rent from April 1, 1926, and that the plaintiff had endeavored to relet the premises and could not. As a second defense defendant pleaded that it leased these premises in accordance with the terms stated in the complaint to be used and occupied for its business--the manufacturing of dresses--and occupied and paid rental therefor until April 1, 1926; that the department of labor of the state of New York prior to this time twice notified it that it must cease permitting any person to work or remain in its factory until at least two legal means of exit from the leased premises had been provided under penalty of a fine and imprisonment under New York law; that defendant notified plaintiff of this order, but she refused to allow it to make the exit required by the order; and that, because of that refusal, the premises became and were untenantable for the defendant for manufacturing purposes, and defendant was obliged to remove its manufacturing plant and give up its business in these premises.

The defendant made the allegations of its second defense a part of its cross-complaint, and further alleged that the premises leased to it for $60 a month for the 10 months of the second year were worth at least $110, and that by reason of its eviction it lost $500.

The jury might reasonably have found proven all of the facts thus alleged in the second defense, except that, while both plaintiff and defendant alleged in their pleadings that the rent had been paid to April 1, 1926, the jury could not upon the evidence have found otherwise than that it had been paid to May 1, 1926, and the further fact that defendant continued in possession of the premises until some day in June, 1926 the specific day not appearing in the evidence. If the jury found, as they might reasonably have done, that the plaintiff refused to permit the defendant to comply with the order of the department of labor of New York, this refusal would have constituted a failure on the part of the plaintiff landlord to comply with her legal duty. This was, in law, a constructive eviction of the defendant tenant, effective from the...