Opinion
October 15, 1951.
Present — Nolan, P.J., Carswell, Johnston, Sneed and MacCrate, JJ.
In this summary proceeding to recover possession on the ground that the tenant's lease was terminated because of nonpayment of rent for May, June, and July, 1950, the defense litigated at the hearing was that of actual partial eviction arising out of (1) the landlord's shutting off part of the tenant's lights for a week or ten days in June, 1950; (2) the allotment by the landlord to the tenant of three and a half instead of five lineal feet of space for the display of the tenant's merchandise in the show windows; (3) interference with, but not denial of, the tenant's right of ingress and egress by the landlord; (4) refusal of the landlord to accept the tenant's advertising copy. The District Court of Nassau County found that these acts were committed by the landlord and that they constituted an actual partial eviction which suspended the payment of the entire rent due for the period in question. The Appellate Term reversed the final order in favor of the tenant on the ground that the acts constituted only a constructive eviction, and granted a new trial to determine the amount of rent actually due. This court granted leave to appeal and the tenant filed a stipulation for judgment absolute. Order of the Appellate Term unanimously affirmed, with costs, and judgment granted to the landlord on the stipulation. No opinion.