
    CORN v. SHAPIRO.
    (Supreme Court, Appellate Term.
    June 30, 1908.)
    Landlord and Tenant—Liability fob Water Charges.
    A lessee, under a lease binding him to pay a proportionate part of the water charges, is not liable for such charges for months he did hot occupy the premises after abandonment thereof, as such water charges are determined by meter, and he could not have used any water during the months he did not occupy the premises.
    
      Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by Henry Corn against Harris Shapiro. Judgment for plaintiff, and defendant appeals.
    Modified and affirmed.
    Argued before GILDERSLEEVE, P. J., and MacLEAN and SEA-BURY, JJ.
    Hurwitz & Theil, for appellant.
    George Hahn, for respondent.
   PER CURIAM.

On February 1, 1907, the defendant went into possession of certain premises belonging to the plaintiff under a three-year lease, at $1,300 per annum, payable the 1st of each month, and providing for the payment of a proportionate part of the Croton water charges. The defendant abandoned the premises on November 15, 1907, but paid the rental for December and January. This action is for the unpaid rental of February and March, 1908, aggregating $216.-66, and for a proportionate part of the Croton water charges, estimated at $18.75. To the claim for rental was set up a plea of constructive eviction month by month from the very beginning, through leakage of the roof. This, under the evidence, was properly held no defense, and in so far the direction of the verdict should stand; but as the water charges were determined by the meter, and the defendant could not have used any during the months when he did not occupy the premises, the judgment should be reduced by $18.75, and, as so reduced, should be affirmed, with costs.

The judgment appealed from is modified, by reducing the amount thereof to $240.47, and, as so modified, affirmed, without costs to either party.  