[113 N.Y.S. 473] Arleigh Pelham, for appellant.
Louis W. Stetesbury, for respondent.
Argued before PATTERSON, P. J., and McLAUGHLIN, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
Defendant leased from plaintiff, for a period of one year, an apartment in the city of New York. The rent was payable monthly in advance. During the term of the lease the defendant vacated the premises, and this action was brought to recover for three months' rent. Payment was resisted upon the ground that without any fault or neglect on the part of the defendant the apartment leased became untenantable and unfit for occupation within the meaning of the statute. Section 197, c. 547, p. 589, Laws 1896. the action was brought in the Municipal Court, where the defendant had a verdict of " No cause of action," and from the judgment entered thereon an appeal was taken to the Appellate Term, where the same was reversed, one of the justices dissenting, and by permission an appeal was then taken to this court.
The defendant vacated the premises leased on account of the noise and vibration caused by the operation of an electric light and power plant upon premises adjoining. She herself describes the trouble as follows:
" I lived on the fifth floor of the apartment house where this power house was next door, and it was not as large when I moved in as it was after I was there a while. They built an addition, and the noise became more and more; but still it was so that I could bear it and stay there, because they would allow you to rest when they let up at night. And then I moved downstairs, thinking I could escape it, and after I moved down there they moved in two very large dynamos, drawn by six horses at a time, and the noise became unbearable. The vibration was so much that it made the dishes rattle and shake and caused a vase to fall to the floor."
In every other respect the premises were satisfactory, and it is conceded that the plaintiff had no connection whatever with the electric light and power company and was not in any way responsible for its operation. Under these facts I do not think the case is brought within the meaning of the statute, which provides that:
" Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender."
The statute clearly contemplates a physical destruction of or injury to the building itself, or something within the building, for which the landlord is responsible, or over which he has control. Majestic Hotel Co. v. Eyre, 53 A.D. 273, 65 N.Y.Supp. 745.The occasion for its passage was to relieve tenants from the payment of rent where the premises were physically destroyed by the action of the elements. Suydam v. Jackson, 54 N.Y. 450.And while it is true that the original purpose has been somewhat extended by the words " or any other cause," nevertheless there still must be, in order to bring a case within [113 N.Y.S. 474] the statute, some physical destruction of the building or some defect in it by which it is rendered uninhabitable. Tallman v. Murphy, 120 N.Y. 345, 24 N.E. 716; Meserole v. Sinn, 34 A.D. 33, 53 N.Y.Supp. 1072, affirmed 161 N.Y. 59, 55 N.E. 274.
Here the cause of the defendant's complaint did not originate upon the premises. It was not under the control of the lessor, or due to any act of his, but was due to the wrongful act of a third party. This did not justify the defendant in vacating the premises, or in refusing to pay the rent stipulated, any more than would noise and vibration caused by reason of the operation of a street railroad, or smoke or noxious odors from an adjoining factory. Edwards v. McLean, 122 N.Y. 302, 25 N.E. 483; Franklin v. Brown, 118 N.Y. 110, 23 N.E. 126,6 L.R.A. 770,16 Am.St.Rep. 744.A lease of real property would amount to very little if a tenant, during the life of the lease, were at liberty to abrogate it because of an interference with his possession by a stranger to the lease, and which interference the tenant himself could prevent, as well as the landlord.
For these reasons, we think that the determination of the Appellate Term should be affirmed, with costs.
PATTERSON, P. J., and HOUGHTON, J., concur.
SCOTT, J. (dissenting).
The defendant appeals from a determination of the Appellate Term reversing a judgment of the Municipal Court. The action is for rent of an apartment in an apartment house in the city of New York. The defense relied upon is that without any fault or neglect on the part of the defendant the apartment demised to her by the plaintiff became untenantable and unfit for occupation, within the meaning of section 197, c. 547, p. 589, of the Laws of 1896 (the real property law), and that on or about the 20th day of May, 1907, and before the commencement of the period for which the rent demanded in the complaint became due, and before the same accrued, the plaintiff was obliged to and did quit and surrender the possession of the premises to the plaintiff. The action is for rent for the months of June, July, August, and September, 1907. The defendant entered into occupation of the premises, under a written lease, on or about October 1, 1906. In January, 1907, a power plant upon adjoining property was greatly enlarged, and additional machinery was installed therein. The result was to produce so much and such incessant noise and such vibration of the apartment house that the ceilings cracked, the shaking was continuous, and the tenants found great difficulty in sleeping. The defendant quit the premises in May, 1907, and undertook to surrender her lease and possession. ...