MILTON BERLINGER and SIMON P. HAMELBURGER, Respondents,
DWIGHT MACDONALD, Appellant.
APPEAL by the defendant, Dwight Macdonald, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of December, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 3d day of January, 1911, denying the defendant's motion for a new trial made upon the minutes.
Arthur C. Bostwick, for the appellant.
Walter Loewenthal, for the respondents.
The plaintiffs are the owners of an apartment house and bring this action to recover rent from January 1 to July 1, 1910, alleged to be due for an apartment therein. The answer sets up a defense of constructive eviction due to plaintiffs' failure to furnish sufficient heat to render the apartment habitable. The lease was in writing and was for a term of one year from October 1, 1909. The rent stipulated to be paid was $100 per month, payable in advance on the first day of each month. There was no provision in the lease with reference to heating the apartment or maintaining any stated temperature therein. There was a provision in it, however, that the apartment leased was to be occupied as a strictly private dwelling by the defendant and his family and not otherwise. On the 7th of January, 1910, the defendant, after having made numerous complaints to plaintiffs' agent in charge, with regard to the heat supplied, vacated the apartment and surrendered possession of it to the plaintiffs on the
ground that the same was not habitable. The trial court, at the conclusion of the evidence, directed a verdict in favor of the plaintiffs for the amount of the rent sought to be recovered, and from the judgment entered thereon and an order denying a motion for a new trial, defendant appeals.
The building is six stories in height and contains thirty separate apartments, the one leased by the defendant being located on the sixth floor. There was no way of heating the apartment except that supplied by the landlords, which consisted of radiators placed in the different rooms, which were connected, in common with all others in the building, by pipes with a a steam boiler in the basement. The entire heating plant was under the exclusive control of the landlords, except that the tenants could let the steam into or cut it off from the radiators. There was in one of the rooms in the apartment leased by the defendant a gas log, but this could not and was not intended to heat the whole apartment. Under these conditions, notwithstanding the fact that there was no covenant in the lease that the landlords should supply the necessary heat to keep the apartment warm and make the same habitable, they were, nevertheless, obligated to do so. Such a covenant is to be read into the lease. By express provision in the lease the defendant was bound to use the apartment leased only for a private dwelling for himself and family. He could not so occupy it unless artificial heat were furnished in cold weather. If the apartment were not kept warm, or if sufficient heat were not furnished to make it habitable, then the premises were not what had been leased and the consideration agreed to be paid failed. Artificial heat was just as necessary during the winter months, or some portion of them, as access to and from the apartment. The landlords having made it impossible for heat to be furnished, other than by means under their control, were bound to furnish it, or for their failure a tenant might vacate and thereafter resist the collection of the rent stipulated to be paid. Of course a tenant would not be justified in vacating premises because upon some particular occasion he was deprived of their beneficial enjoyment by an act of omission or commission on the part of the landlord. He would, however, if such act continued or were persisted in for an unreasonable time.
In that case there would be a constructive eviction, which has been defined to be an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord. The act or omission of the landlord need not be with intent to compel the tenant to leave the property or to deprive him of its beneficial enjoyment; all that is necessary is that the acts are calculated to and make it necessary for the tenant to move.
In speaking of the acts of a landlord which would amount to a constructive eviction, the Court of Appeals in Tallman v. Murphy (120 N.Y. 345) said: 'In such a building as the one under consideration there is very much that remains under the charge and control of the landlord. The heating of the apartments, the supply of water, all sanitary arrangements and many other things essential to the proper enjoyment of the apartments in the building by the tenants thereof, are regulated and controlled by the landlord, and he owes a duty to the tenant to see that all such matters and appliances are kept in proper order, and if he persistently neglects them and by reason of such neglect the tenant is deprived of heat or water, or his apartments are filled with gas or foul odors from the same, and the apartments become unfit for occupancy, the tenant is deprived of the beneficial enjoyment thereof, and the consideration for which he agrees to pay rent fails and there is a constructive eviction.' (See, also, Jackson v. Paterno, 128 A.D. 474.)
The defendant and his wife testified, in substance, that in the forenoon of nearly every day during the greater part of December, 1909, and up to January 7, 1910, when they moved out, the apartment was so cold that they and their children could not keep warm without wearing wraps and overcoats over their ordinary clothing; that for three days in succession during this time, between nine A. M. and four-thirty P. M., the temperature ranged from fifty-six degrees to fifty-nine degrees F.; that on one day during the same hours the temperature did not go above forty-five degrees; that on twelve mornings during ...