
    ERNST v. WHEATLEY.
    (Supreme Court, Appellate Term.
    May 23, 1905.)
    Landlord and Tenant—Eviction.
    A tenant cannot claim an eviction because of the untenantable condition of the premises, resulting from a storm, where he remained in possession of the premises as tenant and occupant for 20 days after the storm.
    [Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 713.]
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
    Action by Moritz E. Ernst against Edward M. Wheatley. From a judgment dismissing the complaint,'plaintiff appeals. Reversed.
    Argued before SCOTT, P. J„ and TRUAX and DOWLING, JJ.
    Bernard M. L. Ernst, for appellant.
    Gifford, Hobbs, Haskell & Beard (Frank B. Pierce, of counsel), for respondent.
   PER CURIAM.

This is an action for rent reserved under a lease in writing. Defendant claims an eviction because the premises in question were rendered untenantable and unfit for occupancy by reason of their flooding with water after a storm on the evening of September 15th. Defendant did not vacate the premises in question, according to his own testimony, until October 5th or '6th, remaining in possession thereof during the interval. It is apparent from his letter of September 16th. to the plaintiff that he intended to recoup what he claimed to be the damages caused to his furniture by the downpour of water by withholding the rent due the landlord; there is no intimation given therein of an intention to abandon the premises because of their condition. The best proof of the fact that the premises were not untenantable is that defendant remained therein as a tenant; and that they were unfit for occupancy is negatived by defendant’s own occupancy of them for a period of 20 days after the storm.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.  