(concurring). Without determining the question of constructive eviction in this action for rent accruing after vacation by the tenant of the premises leased, by or through acts and conduct of an agent of the plaintiff in interfering with a maid of the defendant and in lending in and out of season a too willing ear at the telephone switchboard, rendering the tenancy, as declared, very unpleasant and annoying, even unbearable, the case is barren of such *210acts-or conduct later than the middle of March, 1907, and, upon hearsay, later than some time, not appearing, in April, when the plaintiff was informed and, though requested, refused to discharge that agent. Upon the occurrence of circumstances amounting to a constructive eviction, the tenant is put to his prompt election to tolerate what is unwelcome or to remove from the premises. If he does not speedily evince the latter determination he will be held to have accommodated himself to the former alternative. Retention of the premises until the twenty-fifth of May, even upon writ- ■ ien notice dated May 3, 1907, by the defendant that he would vacate and surrender on or before the thirty-first instant, without reason therein, may not, in view of the evidence, be determined to be a prompt election. The judgment should, therefore, be reversed and a new trial ordered.
Judgment reversed and new trial ordered, with costs to appellant to abide event.