Opinion
February, 1896.
R.H. Channing, for appellant.
Thomas C. O'Sullivan, Robert D. Petty and Gilbert D. Lamb, for respondents.
The defendants are husband and wife, and together occupied rooms in the plaintiff's house under a written lease, but, having left the premises prior to its expiration, this action was brought to recover the rent claimed to have thereafter accrued.
Two defenses were litigated — eviction and a cancellation of the contract, and the justice below found in favor of the defendants.
The record satisfies us that this conclusion was not incorrect, since, while there was the customary conflict of evidence as to the main facts, ample grounds for finding a constructive eviction appeared.
It appears, according to the defendant's evidence, which the justice was authorized to credit, that the plaintiff, who resided continuously upon the premises, was a person of hasty temper, prying and officious, and rendered the condition of tenancy, through unreasonable demands and repeated discourtesy, undesirable, if not unbearable.
The culmination of the difficulties was reached during the last month of the defendant's occupancy, when a violent attack, not only verbal but physical, was made by the plaintiff upon Mr. Russell. Thereupon, notice was given of the defendants' election to terminate the tenancy; the plaintiff expressed her determination that they "must go," and the premises were abandoned at the end of that month, up to which time rent had been paid in advance.
Upon this state of facts, if there were not a good defense of constructive eviction through the lessor's breach of the covenant of quiet and peaceable enjoyment, that covenant might properly have been omitted from the lease in question.
The case falls most fittingly within the ruling of Cohn v. Dupont, 1 Sandf. 263, which was, indeed, a case not so strong for the tenant as the present, since there no actual violence was indulged in by the landlord, a series of minor annoyances alone being held to constitute an eviction. See, also, Sully v. Schmitt, 147 N.Y. 248.
Judgment affirmed, with costs.
McADAM, J., concurs.
Judgment affirmed, with costs.