
    Benjamin Fitch, App’lt, v. Paul J. Armour, Resp’t
    
      (New York Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    1. Trial—Issue—Admission—Question for jury.
    At the close of the evidence plaintiffs counsel said to the court that he thought the only question that could possibly go to the jury was whether a nuisance was maintained or allowed to exist by plaintiff. Held, that this was an admission that the case embraced such an issue, and, as there was proper evidence on the subject, the defendant was entitled to go to the jury upon it.
    
      2. Landlord and tenant—-Flats—Pipes used in common—Repairs.
    A landlord is bound to keep in condition whatever pipes are used in common between the occupants of the several flats of a tenement.
    3 Same—Provision as to default—Diligence in reletting,
    Where a lease provided that in case of any default in any of the covenants the landlord might resume possession of the premises and relet the same for the remainder of the term at the best rent he could obtain for the account of the tenant, who shall make good any deficiency, Held, that if the rent was not collected by any neglect of the landlord the tenant was to be credited with it.
    4. Same—Wrongful discrimination—Liability.
    In such case the landlord cannot discriminate against a person who offers to take a lease without sufficient reason, and should he do so, he will be obliged to credit the tenant with the rent which he might have obtained.
    Appeal by plaintiff from judgment entered on verdict ior defendant and from order denying plaintiff’s motion for new trial made upon the minutes.
    
      Abram Kling, for app’lt; C. Bainbridge Smith, for resp’t.
   Per Curiam.

—The action was by the plaintiff as landlord to recover from the defendant as tenant upon the covenants of a written lease. It is not expedient to state in detail the defense as it appeared by the answer. Certain objections are taken on the appeal to the sufficiency of the answer to uphold certain defenses on which the defendant in fact prevailed on the trial, and in its omission to set up affirmative matter of which on the trial the defendant had the benefit.

In the course of the testimony no objection was taken on the ground of the insufficiency of the answer and when the case went to.the jury there was no objection and no allusion was made to that subject.

The premises let were one floor in a house, the other floors of which were let to separate tenants. Where .the evidence was in the plaintiff’s counsel said to the court, that he thought that the only question that could possibly go to the jury is, as to whether the landlord maintained or allowed to exist on the premises and outside of the premises occupied by the defendant and over which the landlord has exclusive control, anything which would amount either to a nuisance or which would interfere with the beneficial enjoyment by the tenant of the premises. This was not an admission by plaintiff’s counsel that such question should be put to the jury, because it was made on a motion for a direction for a verdict in plaintiff’s favor. But it was an admission that the case embraced such an issue and as there was proper evidence on the subject the defendant was entitled to go to the jury, upon it.

The court made a proper charge on the subject, the plaintiff excepting only to a part of the charge, which was that the landlord was bound to keep in condition whatever pipes were used in common between the occupants of this flat and the occupants of the flats above; in other words such as were not solely within the control and in the sole use of the occupant of this flat, such pipes the landlord was in duty bound to keep-in repair. This charge it supported by Tallman v. Murphy, 120 N. Y., 352; 31 N. Y. State Rep., 483. .

As the jury found for the defendant, there would be no use of going farther if there had not been other issues left to them which may have been determined by them in favor of defendant, irrespective of the question of eviction. The lease provided that in case of any default in any of the covenants, the landlord might resume possession of the premises and relet the same for the remainder of the term at the best rent he could obtain for the account of the tenant, who shall make good any deficiency. After the defendant had left the premises, the plaintiff leased- a part of them to Lyman & Young for the sum of $300. They had not paid this rent, and the judge charged that if that rent was not collected by any neglect of the plaintiff, the defendant was to be credited with it The charge was correct, as under the cited provision the plaintiff was acting on account of the defendant and was bound to use due diligence in renting and collecting rents.

The court also charged that the defendant should be credited with the amount of rent that would have been payable under a letting which the plaintiff might have made to a lady who offered to take a lease for the remainder of the term. The only reason given by the plaintiff on the trial for not accepting her as tenant was that she was an actress; and although he himself had no , objection to her on that score, he believed that the occupancy might disturb other tenants in the building. He could not foresee in what way, but his impression was that her hours would be naturally late, and he feared, as his tenants were domestic! characters it, might disturb them.

This reason was without substance, for the plaintiff had no! cause to believe the hour would be later than those of other ladies in the ordinary evening pleasures of the city, and were they never; so late, the coming in would not be attended with noise or anything else that might disturb the other occupants upstairs. As! upon the plaintiff’s testimony, this was the only reason, she was to be deemed in all other respects a fit and responsible tenant, whose1 offer it was the duty of the plaintiff to the defendant to accept.

On this subject the plaintiff’s counsel asked the. court to charge; that the plaintiff had "the same right to discriminate as to the character of the tenant he would let into the premises in place of. the defendant, that he had if it were not on defendant’s account., The request was not correct, for if the plaintiff were acting for; himself, he could rightfully discriminate without sufficient reason.

If he acted on account of the defendant, he could rightfully discriminate only for sufficient reason.

The plaintiff also asked the court to charge that, if plaintiff was - of opinion that to rent these premises to an actress would lower n their character or standard, or would be objected to by the other1 tenants, he was justified in declining to rent

The first part of the request was inapplicable to the facts of'! the case, as the plaintiff had not refused on that ground. As to ^ the second part a mere opinion, not supported by a reason for the1 opinion, would not be sufficient ground for rejection, as be was acting for defendant as well as for himself. This is especially! true when no enquiry, which might be made easily of the tenants, was made of them.

The judgment and order should be affirmed, with costs. Sedgwick, CL J., Freedman and McAdam, JJ., concur. 1  