Kelly v. Miller

• Decision Date: 03 May 1915
• Docket Number: 477
• Citation: 249 Pa. 314,94 A. 1055
• Parties: Kelly v. Miller, Appellant
• Court: Pennsylvania Supreme Court

94 A. 1055

249 Pa. 314

Kelly v. Miller, Appellant

No. 477

Supreme Court of Pennsylvania

May 3, 1915

Argued March 22, 1915

Appeal, No. 477, Jan. T., 1914, by defendant, from judgment of C.P. No. 3, Philadelphia Co., June T., 1914, No. 2919, for plaintiff for want of a sufficient affidavit of defense, in case of Fannie R. Kelly, et al., v. William W. Miller. Modified and affirmed.

Assumpsit for rent.

Rule for judgment for want of a sufficient affidavit of defense. Before McMICHAEL, P.J.

The opinion of the Supreme Court states the facts.

The court made absolute the rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.

Error assigned was the judgment of the court.

The court below is directed to modify its judgment in accordance with the views expressed in this opinion, and as thus modified the judgment is affirmed.

R. W Archbald, Jr., of Ehrlich & Archbald, for appellants.

Walter Biddle Saul, with him Robert W. Skinner, Jr., and Jacob Snare, for appellees.

Before BROWN, C.J., MESTREZAT, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This is an action of assumpsit by a landlord against his tenant to recover rent due on the demised premises known as Forepaugh's Theatre and situate in the City of Philadelphia. A rule was taken for judgment for want of a sufficient affidavit of defense, and judgment having been entered for part of the plaintiffs' claim the defendant has taken this appeal.

We think the learned court erred in not sustaining the set-off of $2,250 claimed in section 2 of paragraph 8 of [249 Pa. 316] the affidavit of defense. The premises leased were Forepaugh's Theatre in the City of Philadelphia "together with the fixtures and appurtenances appertaining thereto," and were demised for use as a theatre. The lessee owned or occupied the adjoining property to the south known as Nos. 251 and 253 North Eighth street, and on these premises were the room for storage of properties, the dressing rooms for actors, the office of the manager of the theatre, the room for the making and storage of scenery, the women's toilet room, part of one of the entrances and exits for the balcony and gallery, and a booth for the sale of candy. These facts are averred in the affidavit of defense which also avers that access to these rooms was had through an opening in the south wall of the demised premises in the rear and another opening in the same wall on the second floor in the front, that there was also an emergency exit through this wall in the front part of the ground floor to the premises, No. 253, and thence to the street, that the only means of access to the second floor of Nos. 251 and 253 was through the opening on the second floor, that these openings in the wall of the demised premises were useful and necessary to its operation as a theatre, and that without the consent of the lessee the plaintiffs closed up all the openings and they were continued closed until the end of the term of the lease. It is averred that the fair and reasonable rental value of the demised premises was reduced by reason of this act or conduct of the plaintiffs $2,250.

The learned court below held that the closing of these openings, as averred in the affidavit of defense, did not amount to an entire or partial eviction from the demised premises because there was no covenant that they should remain open.

It is true that there is no implied warranty that the premises are fit for the purposes for which they are rented, but there is an implied covenant for the quiet enjoyment of the demised premises, and it is settled in this State that any wrongful act of the landlord which results in an interference of the tenant's...