
    Nineteen John Street Corporation, Appellant, v. John C. McNamara, Jr., Respondent.
    
    Supreme Court, Appellate Term, First Department,
    March 20, 1930.
    
      Bud S. Weisser, for the appellant.
    
      Haaren & Barrett, for the respondent.
    
      
       Revg. 135 Misc. 142; revd., 229 App. Div. 86.
    
   Per Curiam.

The proof as to noises and leaks established at most the basis for a constructive eviction. The tenant having remained in possession would not be in a position to take advantage thereof were it not for the permission granted by the lease to do so. This provision in so far as it permits tenant to remain rent free, construed in the light of the harshness thereof and the fact that only a portion of the premises is affected for a small part of the time, must be construed to be in the nature of a penalty in the lease drawn by the tenant. The dámages suffered are the subject of ready ascertainment and should be established on proper counterclaim therefor.

Final order reversed and new trial ordered, with leave to respondent to serve an amended answer within five days, with thirty dollars costs to appellant to abide the event.

All concur; present, Lydon, Callahan and Peters, JJ.  