Opinion
November, 1908.
Kilroe Swarts, for appellant.
Wells Snedeker, for respondent.
The plaintiff claimed for rent for five months, alleged to be due and unpaid, under a lease of premises to be used and occupied as an office and salesroom, and for no other purpose. The defendant admitted the lease and nonpayment, but defended on the ground of eviction, having moved out through failure of the plaintiff to furnish adequate heat. The lease contains no express covenant to heat the premises, but it does contain the usual covenant of quiet enjoyment. The lease also contains the agreement that the lessor, in case of accident to the heating apparatus, shall repair the same with all convenient speed and shall not be liable for damage by reason of any necessary delay. The evidence discloses that there were radiators and steam fittings in the office and no other means of heating the premises. There was, therefore, from the lease and the evidence, sufficient to imply an agreement to heat on the part of the landlord and undisputed evidence of inadequacy of heat, sufficient to go to the jury upon the question of constructive eviction. Jackson v. Paterno, 58 Misc. 201. The direction of a verdict in favor of the plaintiff was, therefore, improper. The judgment must be reversed and the cause sent back for a new trial.
GILDERSLEEVE and SEABURY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.