Opinion
November, 1934.
Action by plaintiff in the City Court of the City of New York, Borough of Brooklyn, to recover on a series of promissory notes made by the defendant corporation and indorsed by the individual respondents. The corporation, a tenant of certain premises formerly owned by plaintiff and now owned by the impleaded defendants, set up a counterclaim in its answer against the plaintiff and the two impleaded defendants, appellants, to recover a deposit made to secure the rental of the leased premises, alleging a constructive eviction from the leased premises by the owners and an acceptance of a voluntary surrender thereof. The verdict was in favor of the respondent corporation for the amount of the deposit less the amount of the notes. Order of Appellate Term affirming a judgment of the City Court, and said judgment, reversed on the law and the facts and a new trial ordered in the City Court, with costs to abide the event, on the ground that the verdict was against the weight of evidence on the questions of constructive eviction and voluntary surrender.
Young, Hagarty and Davis, JJ., concur; Lazansky, P.J., and Kapper, J., concur in result with the following memorandum:
There was neither actual nor constructive eviction; the tenant was not deprived of the possession of the premises nor of the beneficial use and enjoyment thereof. If that question were in the case, the determination, as well as that in reference to surrender and acceptance, is against the weight of evidence.