
    Mary McKinny, Respondent, v. Charles Browning, Appellant.
    Second Department,
    May 12, 1908.
    Landlord and tenant — eviction — nuisance.
    An eviction by nuisance must be by a nuisance created by, or due in some measure, to the landlord.
    Where in an action against a tenant for rent after abandonment the tenant claims that a dog in apartments above howled so as to become a nuisance amounting to an eviction, but does not show that there was any covenant to exclude dogs, or that the landlord owned the dog, the defense cannot prevail.
    Appeal by the defendant, Charles Browning, from a judgment of the Municipal Court of the city of New York in'favor of the plaintiff, rendered on the 2d day of December, 1907.
    
      George Tiffany, for the appellant.
    
      George E. Brower [Ernest C. Brower with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff brings this actio.n to recover the-balance of rentals due under a written lease, the defendant holding over. In October, 1904, the plaintiff leased to the defendant an apartment in her building. A written lease was entered into, which provided that if the .premises became vacant during the term the landlord might re-enter and lease the same, applying the proceeds to the payment of expenses and the rent reserved, the remainder, if any, to go to the defendant, and in the event of a deficiency the defendant to be liable for tlie same. The defendant entered into possession under this lease for one year, held over for a period of six months, and this action is brought to recover for the remainder of the year, the plaintiff having failed to secure a tenant. A judgment for the amount claimed has been entered, the defendant appealing.

The defense relied upon is eviction. It is alleged that the plaintiff let an apartment to another family directly above the apartments rented to the defendant, and that this tenant owns a dog which, when left alone, as he often is, barks and howls and disturbs the defendant to such an extent as to become a nuisance, amounting, as it is claimed, to an eviction. Passing over the fact that the presence of the dog was known to the defendant for several months before the expiration of his lease, and that he held over knowing the facts, we are unable to understand how it can be claimed that a dog, owned by a tenant of another apartment, can constitute a nuisance for which the plaintiff is in any way responsible.” There is no covenant in the lease of either party, so far as appears, that the plaintiff will exclude dogs from the premises; there is no evidence that the plaintiff owns the dog, or that she knew that the other tenants owned, or would own, a dog, or that, if they did own a dog that it would be left alone, or that it would make a disturbance if it was left alone. It is not a nuisance, as a matter of law, to have a dog, and if the defendant’s fellow-tenants permitted their dog to become a nuisance the remedy was against the fellow-tenants, and not against the landlord, who was not .shown to have been in any degree responsible for the action of the dog. The authorities, we believe, are uniform in holding that-eviction, by nuisance, must be by a nuisance created by,- or due in some measure to, the landlord, in order to obviate the otherwise absolute duty of paying the rent in the manner provided by the contract. There is no merit to this defense, and the plaintiff was fairly entitled to recover.

The judgment appealed from should be affirmed, with costs.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.  