
    Abraham Martens and Theodor Thompson, Respondents, v. Ralph D. Sloane, Appellant.
    Second Department,
    April 30, 1909.
    Landlord and tenant — action for rent — eviction — nuisance by cotenant — failure of landlord to furnish heat.
    It is no defense to an action for rent of premises leased as a private apartment that another tenant was guilty of an alleged nuisance by. using the basement as a restaurant and annoyed the defendant by the odor of cooking if no affirmative act was committed by the landlord, and he had no control over the acts, of the other tenant. Such alleged nuisance is not a constructive eviction.
    Nor can a constructive eviction be based upon the fact that the radiators in the tenant’s apartment were defective and the rooms cold in winter, where the landlord did not covenant to. furnish heat and there was no proof that the apartment was so arranged that it could be heated from a furnace operated by the landlord.
    Appeal by the defendant, Ralph D. Sloane, from a, judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 28th day of December, 1908.
    
      Milton J. Gordon [Nathan Kalvin with him on brief], for the appellant.
    
      Stephen W. Collins [Frederick Willets with him on the brief], for the respondents.
   Rich, J.:

This action was brought to recover rent. The defendant claimed constructive eviction because of a failure to properly heat the demised premises, and because of a nuisance created, by another tenant, to whom a portion of the building, which was occupied as a residence when defendant leased, was subsequently used as a restaurant. The lease, which is in writing, limits.the use of the premisés occupied by defendant to that óf a private dwelling apartment for his family.. There is no covenant of the landlords for quiet enjoyment, heat, repairs, or keeping the premises in such condition that they might be comfortably and without annoyance used by the lessee as a.dwelling. The nuisance complained of was not the result of acts of the landlords, unless it can be held that the giving of the later lease charged them with responsibility for the acts of the lessee. I do not think it had that effect. The cooking of food in the basement of the building, in consequence of which odors found their way into the apartments occupied by defendant, were not acts of the plaintiffs and did not arise from instrumentalities in their possession or operated by them. In that respect the case presented differs from the authorities cited, which involve gas and odors from a furnace in the basement, of an apartment building owned and operated by the landlord for the benefit of all of his tenants (Tallman v. Murphy, 120 N. Y. 345), the entry of water through the cellar and foundation walls, causing dampness and malaria (Meserole v. Hoyt, 161 id. 59), odors arising from a sewer under the demised premises provided by the landlord for the use of himself and other tenants in the building and used by them (Sully v. Schmitt, 147 id. 248), and similar cases in which it was held that such acts constituted constructive eviction. These cases rest upon the affirmative acts of the landlord resulting in a nuisance, due in some measure to him, and are not controlling in a case where the alleged nuisance is confined wholly to acts of a tenant of another portion of the building, using instrumentalities owned and operated by himself, which the landlord does not control and with which he has nothing to do. (McKinny v. Browning, 126 App. Div. 370.) The plaintiffs did not covenant in the lease to furnish heat for the demised premises, and there is no proof that the rooms occupied by the defendant were arranged so that they could be heated from a furnace or other apparatus by plaintiffs. The proof is limited to testimony that there were radiators of imperfect design and construction in such apartments; that the rooms were cold in the winter season, and that the defendant and his wife complained to the plaintiffs and their agent that they did not get sufficient heat. This might all have been the result of the defective radiators, and the. evidence has the effect only of showing that from some unexplained reason the temperature of the demised premises was not maintained so as to make them comfortable .as a residence for defendant’s family during. the winter months.

The evidence does not establish a constructive eviction, and the judgment of-the Municipal Court must he affirmed, with costs.

Woodwaed, Jenks, Gaynor and Burr, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs,  