
    Barnard Realty Company, Respondent, v. Carl Bonwit, Appellant.
    First Department,
    February 7, 1913.
    Landlord and tenant — constructive eviction — offensive odors.
    There is a constructive eviction where an apartment in a tenement house becomes uninhabitable by reason of an intolerable stench arising from dead rats within the walls. The tenant is under no obligation to pull down the walls or ceilings to remove the nuisance, that being the duty of the landlord.
    
      Appeal by the defendant, Carl Bonwit, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of May, 1912, affirming an order of the Municipal Court of the city of New York setting aside the verdict of a jury in favor of the defendant and directing a new trial.
    
      Arthur B. Hyman of counsel [Paskus, Cohen & Gordon, attorneys], for the appellant.
    
      Frank Walling of counsel [John C. Van Loon, attorney], for the respondent.
   Clarke, J.:

This is an action .to recover rent of an apartment. The defense was constructive eviction. The jury found for the defendant. The verdict having been set aside solely as contrary to law, the facts found are established. Defendant and his wife moved into an apartment on the top floor of a new apartment house on the 15th of September, 1910, and moved out on the 8th of November, 1910. The reason therefor was the disturbance caused by the nightly meetings and performances of rats in the walls and ceilings, coupled with a most offensive odor which increased until the place became untenantable.

There are two Appellate Term decisions, one (Jacobs v. Morand, 59 Misc. Rep. 200), in which the presence of bedbugs, croton bugs, red ants, etc., was held not to be sufficient to establish a constructive eviction; and the other (Madden v. Bullock, 115 N. Y. Supp. 123), which held that the loathsome stench of dead and decayed rats was sufficient.

Very large numbers of people live in tenement houses, apartment houses and apartment hotels in this city. Such tenants have, and can have, control only of the inside of their own limited demised premises. Conditions unknown to the ancient common law are thus created. This requires elasticity in the application of the principles thereof. An intolerable condition which the tenant neither causes nor can remedy seems to me warrants the application of the doctrine of constructive eviction. The rule in Jacobs v. Morand (supra) in regard to bugs and ants within the apartment, which can be dealt with by the tenant by processes known to all housewives, should not be extended to cover offensive and unbearable nuisances outside of the apartment. This tenant could not pull down the walls or the ceilings. He and his family ought not to be compelled to pay rent for an apartment in which they could not live.

This court has held that when the landlord had the entire control of the heating plant a failure to provide sufficient steam heat was enough to constitute constructive eviction. (Berlinger v. Macdonald, 149 App. Div. 5.) Of course that case is different from the one at bar because there it was within the power of the landlord to furnish the heat, and if he did not it was an act of omission upon his part. But here the jury have found the existence of an intolerable condition. The tenant did not cause it and could not remedy it. If any one could it was the landlord. He attempted- to and failed. We think the flat dweller was justified in his abandonment of the premises.

The determination of the Appellate Term and the order of the Municipal Court should be reversed and the verdict of the jury reinstated, with costs to the appellant in all courts.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Determination and order reversed and verdict reinstated, with costs to appellant in all courts. Order to be settled on notice.  