
    Esther B. Marks, Appellant, v. Nicolo Dellaglio, Respondent.
    (Supreme Court, Appellate Term,
    June, 1900.)
    Landlord and tenant — An abandonment, for untenantability, must be prompt.
    A tenant who deems premises untenantable must abandon promptly, and where he waits more than a year before doing so, he waives his right to repudiate the hiring.
    
      Appeal from judgment of the Municipal Court of the city of New York, second district, borough of Manhattan, in favor of the defendant. The action was for rent.
    W. C. Beecher, for appellant.
    Hyman Levy (Franklin Pierce, of counsel), for respondent.
   Per Curiam.

This is an action brought to recover the rent of certain premises in the city of New York, under a written lease. The defense is substantially an eviction in consequence of the defective condition of the adjoining premises, also owned by the plaintiff, which caused foul odors to enter the premises in question. The defendant had been in possession of the demised premises for several years. He moved out on or about June 30, 1899. It appears from the evidence that the condition, which defendant claims justified his vacation of the premises, existed previous to June, 1896, about which time he first complained to the plaintiff. The defendant was then called upon to make his election either' to abandon the premises for the reasons assigned, or to retain them, notwithstanding their objectionable condition. Copeland v. Luttgen, 17 Misc. Rep. 604; Smith v. Kerr, 108 N. Y. 31; Stein v. Rice, 23 Misc. Rep. 348. By retaining possession of the premises for more than a year, with knowledge of the conditions now complained of, the defendant waived his right to repudiate or terminate the hiring. He was required to act with reasonable promptitude. As stated in Copeland v. Luttgen, supra, “A tenant must exercise his option to abandon demised premises within a reasonable time after discovering their untenantable condition.” The defense interposed is without evidence to support it, and the judgment must be reversed.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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