
    Charles T. Ryan, Resp’t, v. Edward P. Jones, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    1. Landlord and tenant—Eviction.
    To -justify the tenant’s abandonment of demised premises, it is not enough that at some time during the period of his occupancy he was deprived of their beneficial enjoyment by the wrongful act of the landlord ^
    
      but it should appear that the deprivation was persisted in and continued at the time of the abandonment.
    2. Same.
    A failure of the landlord of an apartment house to supply sufficient heat during the colder months of winter will not justify an abandonment by the tenant in April following.
    Appeal from, a judgment for plaintiff, rendered in the district court in the city of New York for the ninth judicial district. Action to recover rent, the defenses being an alleged surrender of the lease by mutual agreement and eviction before acerument of the rent.
    
      Wm. King Hall, for resp’t; Charles H Preyer, for app’lt.
   Bischoff, J.|

The action was to recover rent accruing April 1, 1892, and the defenses were surrender of the lease by mutual agreement and eviction.

The surrender was predicated of an alleged oral agreement with plaintiff’s agent, the making of which the latter, however, emphatically denied. Acceptance of the keys did not, of itself, constitute an acceptance of the surrender of the lease, Thomas v. Nelson,,,69 N. Y., 118; Winant v. Hines, 14 Daly, 187 ; 6 St. Rep., 261; Spies v. Voss, 16 Daly, 171; 30 St. Rep., 548, and a conflict of testimony respecting the alleged agreement does not afford sufficient ground for reversal if it is not apparent that justice has been perverted. Weiss v. Strauss, 39 St. Rep., 78.

On the trial it appeared that the building No. 157 West Nineteenth street, in the city of New York, comprised nine distinct tenements or “flats,” so constructed that each was substantially dependent for comfortable inhabitation during the colder season upon a furnace and boiler situated in the cellar, from which steam heat was distributed by conduits to the several tenements and there diffused by means of “radiators ; ” and that of the furnace and boiler the landlord had reserved exclusive control.

It further appeared that two of these tenements had been demised to defendant under a written lease, dated October 30, 1891, for the term of one year, commencing November 1, 1891, at the monthly rental of ninety dollars, payable in advance; that defendant was restricted in the occupation of the demised premises for the purposes of a private dwelling; and that alterations therein by the tenant were inhibited except with the written consent of the landlord. The lease did not in terms bind the landlord to supply any heat whatever which was required in the use of the tenements.

We may assume for the purposes of this appeal, as contended by the defendant, that the facts stated constituted the adequate supply of heat by the landlord an integral part of his covenant that during the term demised the tenant may quietly have, hold and enjoy the premises ; and that for the breach of it, whether due to acts of omission or of commission, whereby the tenant is substantially deprived of his right to their beneficial enjoyment, he may abandon the premises and successfully interpose as a defense to a demand for subsequently accruing rent that he was evicted by the landlord. West Side Savgs. Bk. v. Newton, 76 N. Y., 616; Denison v. Ford, 7 Daly, 384; Duff v. Hart, 40 St. Rep., 676; Lawrence v. Mycenian Marble Co., N. Y. Com. Pleas, Geni. Term, Nov., 1892; 48 St. Rep., 719. But we are, notwithstanding, of the opinion that the defense of eviction was not established.

To justify the tenant’s abandonment of the demised premises it is not enough that at some time during the period of his occupancy he was deprived of their beneficial enjoyment by the wrongful act of the landlord, but it should appear that the deprivation was persisted in and continued at the time of the abandonment, Gilhooley v. Washington, 4 N. Y., 217 ; Edgerton v. Page, 20 id., 281; Boreel v. Lawton, 90 id., 293 ; Koehler v. Scheider, 15 Daly, 198 ; 23 St. Rep., 68, and hereof the evidence is deficient.

It was conceded that the landlord did supply heat, and the utmost which may be successfully claimed for the evidence is that it established the fact of the landlord’s neglect or refusal to furnish an adequate supply during the colder season preceding defendant’s removal. Defendant, however, did not quit possession until April 1st, and from the advent and propinquity of seasons of greater clemency respecting the need of heat for .the comfortable inhabitation of the demised premises the trial justice was authorized to find that, at the time of defendant’s alleged eviction, the grounds of former complaint had ceased to be relevant, and that the full enjoyment of the demised premises had then been restored to him.

The exceptions to the rulings on the trial present no error, and the judgment should, therefore, be affirmed, with costs.

Pryor, J., concurs.  