Opinion
January Term, 1903.
Henry Schmitt, for the appellant.
Lemuel Skidmore, for the respondent.
It is for us to determine upon the evidence whether the judge of the Municipal Court was right in submitting the questions as ones of fact to the jury, or whether the Appellate Term was right in determining them as matters of law.
The use of closets contiguous to the rooms rented and of the wash basins therein, of the elevators and hallways, stairs and entrance of the building, was included though not mentioned in the lease, and the right to use them passed to the tenant. As said in Doyle v. Lord ( 64 N.Y. 437): "The general rule of law is that where a house or store is conveyed by the owner thereof, everything then belonging to and in use for the house or store, as an incident or appurtenance, passes by the grant." And in Wood on Landlord and Tenant (2d ed. § 47) it is said: "If a person take lodgings on the first and second floors of a house, he has a right to the use of the door bell, the knocker, the skylight, of the staircase, and the water closet and every other convenience connected with the building essential to the comfortable enjoyment of the leased portion, unless it be otherwise stipulated." And in Hamilton v. Graybill ( 19 Misc. Rep. 521) it was said that the fact of the existence of the water closet on a floor "may have been materially persuasive upon the respondent when he accepted the lease of the rooms and which because not expressly excluded passed with the demise, although not particularly alluded to." McAdam on Landlord and Tenant says (Vol. 1 [3d ed.], p. 269): "The term `appurtenances' received a broad and liberal meaning by the Court of Appeals in Doyle v. Lord ( 64 N.Y. 437). The court said: `That word would give him' (the tenant) `whatever was attached to or used with the premises as incident thereto and convenient or essential to the beneficial use and enjoyment thereof.'"
There seems to be no necessity for arguing this general proposition, it being conceded that a tenant is entitled to have access through the door, halls, stairs, floors and elevators and the use of the wash basins and closet in order to enjoy the rooms he occupies, and these elements are factors in determining the sum to be paid as rent under the lease. If the tenant, deprived of such appurtenances, had moved out pending the repairs and had then been sued for the rent, could it be held as matter of law that he was liable therefor? The answer would depend on whether or not those appurtenances were a material and integral part of the demised premises, and whether the loss or deprivation to the tenant was substantial for a sufficiently long period of time, so as to constitute an eviction. If immaterial and temporary, the tenant could not retain possession and refuse to pay the rent.
Upon the evidence we think that conflicting views might be taken as to whether the alterations were so material and substantial in character as to amount to an eviction, or whether they were of such an immaterial and temporary kind as not to affect injuriously the enjoyment of the demised premises. Unless the former conclusion had no basis for support in the evidence there was properly a question for the jury. ( Hamilton v. Graybill, supra; Simmons v. Cloonan, 81 N.Y. 557.)
It was testified that during the period access to the building and elevator and stairs was so interfered with that dangerous conditions existed down to the latter part of January; that the closet and wash basins were removed during the time and not replaced till the latter part of January, and that the closet on the floor below was unsanitary owing to the use by the workmen. The extent of the repairs, the time consumed in making them, how far they affected in a substantial way the tenant's enjoyment of the premises, were all elements to be considered by the jury upon the question of fact presented, as to whether or not the defendant's acts constituted an eviction. The evidence bearing upon this subject, we think, supports the jury's verdict that they did, and in this conclusion we differ from the learned Appellate Term, which held, as matter of law, that they did not.
We also differ from the conclusion of the Appellate Term on the other branch of the case, that the acceptance of a reduction in the rent estopped the tenant. The agreement of reduction made when the lease was entered into rested in parol, and there was a serious conflict as to its terms. We have the two versions, one by the landlord, the other by the tenant, and thus a question of fact was involved which it was the province of the jury to determine. Nor do we think that the provision in the lease that no "latent defect or change of condition" should give rise to any claim against the landlord has any material bearing on the questions discussed, because the complaint of the tenant did not relate to latent defects. To extend this provision of the lease, therefore, so as to cover damage flowing directly from the positive acts of the landlord, would leave the tenant without any protection under his lease.
There being then a basis for the finding by the jury that the alterations and deprivations did materially interfere with the enjoyment of the premises and the appurtenances given by the lease, it follows that the tenant was, by the act of the landlord, evicted from a part of the leased premises. As said in Peck v. Hiler (24 Barb. 178): "An interruption of the enjoyment of a privilege conferred by a lease by physical means adopted by the landlord constitutes an eviction and suspends the rent of the * * * premises, and the remedy of the lessor for the recovery of the possession." And in Sirey v. Braems ( 65 App. Div. 472) it was held (head note) that "the eviction of a tenant from a portion of the demised premises suspends, during the continuance of the eviction, the right of the landlord to maintain summary proceedings against the tenant for non-payment of rent."
We have not overlooked the contention that the court erred in its charge to the jury. To that portion, however, which is particularly objected to no exception was taken, and, upon an examination, we think the charge was in all respects fair and proper.
Our conclusion, therefore, is that the order of the Appellate Term should be reversed, with costs, and the judgment entered on the verdict of the jury in the Municipal Court affirmed, with costs.
VAN BRUNT, P.J., PATTERSON, McLAUGHLIN and LAUGHLIN, JJ., concurred.
Determination of Appellate Term reversed, with costs, and judgment entered on verdict of jury in the Municipal Court affirmed, with costs.