Floyd-Jones v. Schaan

McLaughlin, J.:

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 (Laws of 1896, chap. 547, § 197). 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 on 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 down stairs, 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 in jury occurred without liis 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 App. Div. 273.) 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 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; Meserole v. Sinn, 34 App. Div. 33; affd., sub nom. Meserole v. Hoyt, 161 N. Y. 59.)

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; Franklin v. Brown, 118 id. 110.) 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., concurred; Lahgblin and Scott, JJ., dissented.