
    REALTY ASSOCIATES v. PURDY.
    (Supreme Court, Appellate Division, Second Department.
    February 17, 1911.)
    1. Landlord and Tenant (§ 172)—Eviction.
    • A lease stipulated that the tenant would admit mechanics to make repairs. The tenant.removed his effects in August, but refused to allow the landlord to enter because he would not abate September rent, and the landlord authorized a plumber to enter on September 1st; and thereafter without the landlord’s authority on the same day the plumber removed certain plumbing fixtures, and the landlord afterwards ratified the estimate and ordered the work done, and four days thereafter the premises were dismantled. Held, that such acts amounted to an eviction.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703; Dec. Dig. § 172.]
    
      2. Landlord and Tenant (§ 190)—Rent—Date.
    Where a tenant was privileged to pay rent at any time on the 1st day of the month, and there was an eviction on that day, the eviction occurred before the time of payment had elapsed.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 7G5-767; Dec. Dig. § 190.]
    Appeal from Municipal Court, Borough of Brooklyn, First District.
    Action by the Realty Associates against Percy B. Purdy. Frorn a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.
    Allan C. Rowe, for appellant.
    Lynn C. Norris, for respondents
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   THOMAS, J.

Purdy was plaintiff’s tenant, under a lease expiring *at the end of September. In August he removed his effects from the premises, but refused to allow the plaintiff to enter for the purpose of repairs, inasmuch as plaintiff would not abate the rent for September. The case was submitted upon stipulated facts. On the 1st of September the plaintiff, having caused keys to be made, authorized a plumber to enter the premises for the purpose of examining the same, in order to bid upon specifications for repairs. Thereupon such person, without plaintiff’s preliminary authorization, removed the “nickel fixtures in the bathroom and the nickel fixtures of and leadwork under two basins on the second floor”; but later the plaintiff let the contract for the plumbing, which involved such removal. On September 5th the gas fixtures were removed, and thereafter from time to time during the month of September the premises were dismantled in such manner as to preclude enjoyment thereof by the tenant. The lease provided as follows:

“And the tenant covenants and agrees that he will: * * * (6) Admit mechanics who are authorized to make any improvements in, to, or upon said premises.”

The tenant in writing refused to .admit mechanics for the purpose of repairs, and thereupon the landlord caused entry to be made without permission. It is unnecessary to decide whether the landlord could rightfully enter, where the tenant wrongfully refused it, for proper purposes, inasmuch as it was the intention of the landlord to make such repairs as would preclude the tenant’s enjoyment during the month, and he fulfilled his intention by repairs destructive of the tenancy. The stipulation in the lease did not contemplate such repairs as would make the premises wholly unhabitable, and the landlord’s action was tantamount to an eviction. Plaintiff’s broad contention is that under the lease he could' do this very thing, and he did do it. The rent was payable on the 1st day of September, but on that day the plumber, let in by the landlord, initiated work which, although not authorized at the time, -yvas thereafter ratified, and followed by the dismantling of the premises. As the tenant was privileged to pay the rent at any time on September 1st, the eviction occurred before the time of payment had elapsed. Moreover, on September 5th, additional elaborate repairs, set out in the statement of facts, were begun, and they fully indicate that the landlord purposed on September 1st and the following days in the month to preclude the use and occupation of the premises by the tenant.

Therefore the judgment of the.Municipal Court should be reversed, and a new trial ordered; costs to abide the event. All concur.  