Summary
In Two Park Ave. Co., the parties' lease permitted the landlord to install pipes and conduits in the demised premises and to the floors above and below, so long as it resulted only in depriving the tenant of any "insubstantial" part of the demised premises (17 Misc 2d at 443).
Summary of this case from Eastside Exhibition Corp. v. 210 East 86th Street Corp.Opinion
November 26, 1958
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, THOMAS C. CHIMERA, J., PELHAM ST. GEORGE BISSELL, 3d, J.
Demov Morris ( Eugene J. Morris, Matthew J. Domber and Robert D. Levin of counsel), for appellant.
Gerald Orseck, Robert Orseck and Sidney Orseck for respondent.
Appeal No. 47. The landlord's affirmative case was admitted. There was no constructive eviction because the tenant did not quit the premises. There was no partial eviction because there was no deprivation of a substantial portion of the demised premises. The counterclaim for damages to tenant's property is inadequately pleaded and the instructions to the jury did not make this phase of the case clear and were so bound up with issues that should not have been presented at all that the findings of the jury cannot be considered as a determination of the facts. The counterclaim is dismissed without prejudice to a separate action for this relief or to pleading it as a counterclaim in the second action between the parties.
Appeal No. 45. While the granting of summary judgment might have been proper had the prior judgment been entered after a proper disposition, in view of the decision on the companion appeal herein this order cannot stand.
The final order and judgment in Appeal No. 47 should be reversed, with $30 costs, and final order directed for landlord as prayed for in the petition, with costs. Counterclaim dismissed without prejudice.
The final order and judgment in Appeal No. 45 should be reversed, and motion for summary judgment denied, without costs.
Concur — HECHT, J.P., STEUER and TILZER, JJ.
Final order (Appeal No. 47) reversed, etc.
Final order (Appeal No. 45) reversed, etc.