Opinion
May 3, 1939.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Judgment so far as it dismissed the complaint and granted a money judgment to the defendant reversed on the law and a new trial granted, with costs to the appellants to abide the event. Memorandum: Whether there was a breach of covenant to maintain the roofs in an unleakable condition, whether there was a constructive eviction of such character as to justify the plaintiffs in abandoning the premises after June 14, 1938, whether the defendant accepted a surrender of the premises and the lease, whether defendant was entitled to recover on his counterclaim for rent and whether the plaintiffs were entitled to recover damages for breach of covenant to repair, were questions of fact which should have been submitted to the jury. The dismissal of the complaint and the direction of a verdict for the defendant on the counterclaim for rent constituted reversible error requiring a reversal of the judgment so far as appealed from and the granting of a new trial. (See City of New York v. Pike Realty Corp., 247 N.Y. 245, 247; Kelsey v. Ward, 38 id. 83, 84; T.H.E. Co. v. D.L.I. Co., 144 id. 34, 48; Hexter v. Knox, 63 id. 561, 567; Tallman v. Murphy, 120 id. 345, 351, 352; Fox v. Murdock, 58 Misc. 207, 208; Berlinger v. Macdonald, 149 App. Div. 5; Lounsbery v. Snyder, 31 N.Y. 514; Bromberger v. Empire Flashlight Co., Inc., 138 Misc. 754, 757; Matter of Byrne v. Padden, 248 N.Y. 243, 248; Fifth Ave. Bldg. Co. v. Kernochan, 221 id. 370, 373; Matter of O'Donnell, 240 id. 99, 104; Hayden Co. v. Kehoe, 177 App. Div. 734, 737; Doolittle v. Selkirk, 7 Misc. 722; Jersey Silk Lace Stores, Inc., v. Best Silk Shops, Ltd., 134 id. 315; Thomas v. Kingsland, 12 Daly, 315, 317; affd., 108 N.Y. 616; Tootle Theatre Co. v. Shubert Theatrical Co., 175 App. Div. 530, 534, 535; Beakes v. Holzman, 47 Misc. 384; Jackson v. Doherty, 17 id. 629, 631; Sheary v. Adams, 18 Hun, 181, 182; Diamond v. Bollt, 174 N.Y. Supp. 642, 644; 2 New York Law of Landlord and Tenant, § 921.) All concur. (The judgment is for defendant on his counterclaim, after dismissal of the complaint, in an action for damages for the breach of a covenant of a lease.)