Tallman v. Murphy

• Decision Date: 03 June 1890
• Citation: 24 N.E. 716,120 N.Y. 345
• Parties: TALLMAN v. MURPHY.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 345

24 N.E. 716

TALLMAN

v.MURPHY.

Court of Appeals of New York, Second Division.

June 3, 1890.

Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a verdict of a jury.

This action was to recover three months' rent for apartments in a building No. 29 West 57th street, in New York city, known as ‘The Soncy.’ The defense was- First, an eviction; second, that the building was so injured as to be untenantable and unfit for occupancy, and that the defendant, therefore, quit and surrendered the demised premises pursuant to chapter 345, Laws 1860. There was a verdict for the defendant at the circuit, which was affirmed by the general term. Further facts appear in the opinion.

VANN and PARKER, JJ., dissenting. Affirming 55 N. Y. Super. Ct. 566, mem.

James M. Smith, for appellant.

Theodore F. Sanxay, for respondent.

BROWN, J., ( after stating the facts as above.)

When the defendant rested his case, and again at the close of the testimony, there was a motion that the court direct a verdict for the plaintiff, which was denied, and an exception taken by the plaintiff. The court instructed the jury that the evidence on the part of the defendant was sufficient, if believed by them, to sustain the claim of eviction, and that it would also justify a finding that the defendant was warranted in abandoning the premises under the statute of 1860, and in such case he would not be liable for the rent. The facts of the case, which the jury may be assumed to have found, were as follows: The building in which the defendant was a tenant was a large apartment-house, so arranged that several rooms on one floor should constitute an apartment, and intended to furnish therein complete arrangements for the occupation of one family. The owner retained charge of and control over everything that was common to the whole building, and of which each tenant had the use or beneficial enjoyment, such as the hallways, heating apparatus, water supply, elevators, etc. The defendant occupied the first apartment above the basement on the east side of the house. He entered into occupation October 22, 1884, and finally abandoned the premises on Febuary 28, 1885. In January, 1885, there was a strong odor of coal gas in his rooms, which continued more or less until he left the building. It compelled the opening of the windows, and made defendant and his wife sick. The landlord's attention was directed to it, and he promised to remedy it, but never did so. There was also smoke in the parlor, which was quite severe for a few days, and continued in a less degree while defendant occupied the apartment. The proof tended to show that the gas and smoke came through the flues from rooms occupied by other tenants. Plaintiff promised to remedy it, but did not do so. There were loud explosions heard throughout the building. These were of frequent occurrence during the day-time and night. They were described by witnesses as resembling the discharge of a gun and the boom of a cannon. One witness, who had lived in California and experienced several shocks of earthquake, likened the noise and vibration to that of an earthquake. They caused the building to tremble and shake. Furniture was moved. Vases and other ornaments were thrown from the mantels and shelves and broken, clocks stopped, and large cracks were made in the walls and ceiling. The landlord expressed to plaintiff and his wife the belief that a discharged employe had exploded dynamite in the pipes and flues of the house, for the purpose of injuring the building. Defendant and his wife were severely frightened by these explosions, and were under a well-founded apprehension that there was danger in remaining in the building. On the 15th of February they moved away. They returned on the 28th of February, but soon after retiring at night a loud explosion occurred, which so frightened them that they arose and dressed, and did not again retire, and on the following day they gave up the possession of the premises. The cause of this unprecedented condition of affairs had not been discovered at the time of the defendant's leaving. The plaintiff had employed detectives, and endeavored to solve the mystery, but had failed. Upon the trial, there was evidence that the noise proceeded from a large water-tank on the roof, and was caused by the action of the water upon sheet-iron partitions in said tank, in connection with the use of the water in running the elevator. During the month of February the building was examined by examiners of the board of inspection of buildings, and pronounced unsafe and dangerous. The rear wall was settled and cracked, and window-sills and lintels broken.

We are of opinion that the case was one for the consideration of the jury. The statute of 1860, referred to, provides that a lessee of a building which shall, without fault or neglect on his part, ‘be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to payrent to the lessor, * * * and may thereupon quit and surrender possession of the leasehold premises.’ The statute contemplates an injury to the building which substantially affects the enjoyment of it by the tenant. The evidence permitted such a conclusion by the jury in this case. The defendant testified: ‘These explosions were cracking the walls and ceiling in the apartment. Those cracks were increasing all the time, growing larger and larger. One was large enough to put in my two fingers.’ Another witness, an occupant of another apartment, testified: ‘These shocks and vibrations cracked the walls. There was paper on my apartment, and these cracks showed through the paper. Some of these cracks were as much as fifteen or twenty feet long. In some places I could place my hand in the crack, the width of two fingers. As those explosions were repeated, they would increase or grow wider.’ These explosions occurred throughout the month of February. On the 10th and 17th of that month the building was examined by the inspector of buildings of the city, and declared to be unsafe and dangerous. The rear wall was settled and cracked. The only explanation given by the landlord was that he believed that dynamite had been exploded somewhere in the building. Under these circumstances, we think that the jury were justified in finding that there was an ‘injury’ to the building, and that it was ‘untenantable and unfit for occupancy.’ It will be observed that the statute does not require that the building should be unsafe or dangerous, but that it should be ‘unfit for occupancy’ as a result of injury. It puts upon the landlord the risk of having the premises unfit for occupation. Vann v. Rouse, 94 N. Y. 401. Such injuries as are the result of failure to make ordinary repairs, when the landlord has not agreed to make them, do not come within the statute, because it was not intended to modify or change the relative duties of the parties to the lease in that respect. That is all that was necessarily decided in Suydam v. Jackson, 54 N. Y. 450. There the condition of the building was the result of a failure to make ordinary repairs, and the landlord had not agreed to make them. Here the evidence tended to show, substantially, injury to the building not resulting from any fault or neglect of the tenant, and which justified the fear on his part that it was dangerous longer to remain an occupant of his apartments. We are of the opinion that the trial court did not err in submitting this branch of the case to the jury. A building shaken by repeated explosions, which caused the walls and ceiling to crack, the plaster to fall, clocks to stop, and ornaments to be broken, and which was declared by the officer of the bureau of inspection of buildings to be ‘unsafe and dangerous,’ and the rooms of which were at times filled with smoke and coal gas to an extent sufficient to make the inmates sick, could hardly be called ‘tenantable or fit for occupancy,’ within the fair meaning of that term applied to a building of the character and purpose of the one in question.

Assuming, however, that the jury might have believed that the injuries to the building were exaggerated by the defendant and his witnesses, and that a case did not exist which justified the surrender of the possession of the property under the statute cited, still we are of the opinion that the evidence was such that the jury might have found an eviction. ‘An ‘eviction’ is defined to be where there has been an obstruction to the beneficial enjoyment of the premises, and a diminution of the consideration of the contract by the acts of the landlord.' McAdam, Landl. & Ten. 478, 479, and cases cited. It is not necessary that there should be actual expulsion of the tenant from the premises. If the landlord commits or suffers acts to be committed which makes it necessary for the tenant to remove, this is equivalent to expulsion. Dyett v. Pendleton, 8 Cow. 728;Edgerton v. Page, 20 N. Y. 283; Cohen v. Dupont, 1 Sandf. 260. The first case cited established the law in this state, that, if the landlord creates a nuisance in the vicinity of the demised premises, or commits acts which deprive the tenant of the beneficial enjoyment of the property, in consequence of which the tenant abandons the possession before rent is due, the lessor's action for rent is barred. The consideration of the agreement to pay rent in such case fails. ‘If the tenant be deprived of the thing letten, the obligation to pay the rent ceases, because such obligation has its force only from the consideration which was the enjoyment of the thing demised.’ Per SPENCER, Senator, in Dyett v. Pendleton, supra. Gilhooley v. Washington, 4 N. Y. 217, cited by the appellant, is not in conflict with these authorities. In that case it was not shown that the plaintiff had any connection with the nuisance which induced the defendant to quit the...