
    Amelia Phyfe, Respondent, v. John G. Dale, Appellant.
    (Supreme Court, Appellate Term,
    June, 1911.)
    Landlord and tenant — Rent and advances — Rights and liabilities— Disturbance of possession of tenant — Disorderly conduct of co-tenants.
    Where the tenants of. other apartments in an apartment house so conduct themselves that a tenant of one of the apartments, his wife and children are kept awake ■ until late at night, and loud arguments, lewd conversations and disorderly conduct are indulged in to such an extent that the peace and comfort of the tenant’s family are interrupted, and the landlord after complaint made to him attempts no redress, such acts and conduct are sufficient to constitute a constructive eviction; and, after the defendant has vacated the premises on account of them, the landlord cannot recover rent.
    Appeal by the defendant from a judgment of the Municipal Oourt of the city of Mew York, borough of Manhattan, fifth district, rendered in favor of the plaintiff, by direction of the court, and from an order denying a motion for a new trial.
    Malcolm Sundheimer (A. Maurice Levine, of counsel), for appellant.
    Kelley & Connolly (M. E. Kelley and C. S. Lorentzen, of counsel), for respondent.
   Seabury, J.

This is an action to recover rent under a written lease. The answer admits the making of the lease and pleads a constructive eviction. The demised premises consisted of an apartment in an apartment-house in which the common halls, elevators and stairways were under the control of the plaintiff. The evidence shows that the tenants of other apartments conducted themselves in a noisy and indecent manner; and that, owing to this conduct, the defendant, his wife and two small children were kept awake until the late hours of the night; and that loud arguments and lewd conversations were heard nightly, and acts of prostitution were seen going on through the open windows in the apartment below that leased to the defendant. The evidence also shows that telephone conversations, soliciting females to come to the premises for purposes of prostitution, were frequently heard by the inmates of defendant’s apartment. Men and women in an intoxicated condition were shown to have visited the house, and tenants were accosted and insulted in the elevators and halls which were under the control of the landlord. The defendant’s wife was insulted in this manner while in one of the elevators.

The landlord was shown to have knowledge of all of these facts, and he took no action to restore order in the halls and elevators or to remove the tenants who were guilty of the conduct complained of. Upon ascertaining that the landlord would take no action to remedy this condition of affairs, the defendant did the only thing he could do, he removed from the premises. The present action is to recover for the rent of the premises after the defendant had removed therefrom. The actions which the landlord permitted to take place in the elevators and halls constituted a common nuisance which the landlord had the complete power to abate. His failure to do so justified the defendant in vacating the premises. The defendant was not obliged, by any rule of law or reason, to remain in the premises and permit his wife to be grossly insulted and the peace and comfort of his family to he rudely interrupted. The actions complained of, in so far as they were committed in that part of the premises which were under the control of the landlord, constituted a constructive eviction. Dyett v. Pendleton, 8 Cow. 727.

While we regard the principle stated as decisive of this case, we are of the opinion that the failure of the landlord to institute proceedings to remove the objectionable tenants itself justified the defendant in removing from the premises.

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

Guy and Bijub, JJ., concur.

Judgment reversed.  