The record indicates that the trial court found as matter of law that the noises emanating from the apartment overhead could not support the tenant’s claim of constructive eviction. (Seaboard Realty Co. v. Fuller, 33 Misc. 109.) In view of the pertinent provisions of the lease, including that which empowered the landlord to terminate conduct disturbing to the other occupants of the building, and the proof that here the landlord took no effective steps to remedy conditions after ample notice, we think sufficient facts were presented to require the court to pass on the merits of the defense. (Levine & Rosen v. Hence, App. Term, Oct. 1931.)
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Levy, Callahan and Untermyer, JJ.