
    MARIO DI BLASI, PLAINTIFF-APPELLEE, v. JAMES B. HIGGINS, DEFENDANT-APPELLANT.
    Submitted October 15, 1929
    Decided December 30, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the defendant-appellant, Harry Spitzer.
    
    Eor the plaintiff-appellee, Esther Bechhoff.
    
   Per Curiam.

The landlord sued for unpaid rent for an apartment in Brooklyn -which, the defendant leased. The parties contemplated certain alterations at the time of the leasing which the landlord did his best to accomplish. The defendant moved away during the summer, and seeks to recover on a counterclaim because of a constructive eviction and for injury to his furniture.

Obviously, there was no constructive eviction since the alterations were being made with the knowledge and consent of the defendant and for his benefit.

There was, we think, evidence from which the jury might have found a surrender by operation of law, but this issue was not raised in the court below. So we cannot do otherwise than affirm the judgment below.  