
    Mary Bradley, as Administratrix, &c., of Saulesbury L. Bradley, deceased, Appellant, against Nestor De Goicouria, Respondent.
    (Decided May 22d, 1884.)
    Under the covenants in a lease of a separate apartment in an apartment house, the lessee was bound only to make such repairs in the plumbing therein as required no change in or were independent of the general plumbing work of the house, which it was the duty of the landlord to keep in repair. During the term, members of the family of the lessee occupying the apartment became ill from inhaling a deleterious gas which permeated the apartment from the sewer, owing to the defective condition of the general plumbing work of the house, of which the landlord was notified by an order of the Board of Health requiring him to have changes made in the plumbing, which would have removed the defects. Nothing of the kind having been done on the part of the landlord during a period of about two weeks after such order was made, the tenant abandoned the premises, under the apprehension that the health and perhaps the life of himself and family would be imperilled by remaining. Held, that there was a constructive eviction, such as to relieve the tenant from payment of rent.
    Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a motion for a new trial.
    The action was brought by Saulesbury L. Bradley to recover rent, under a lease by him of an apartment or suite of rooms in a building in the City of New York to defendant for the term of one year from the first day of October, 1881, at the yearly rent of $1,620, payable monthly in advance, the amount claimed being the sum of $135, becoming due on June 1st, 1882. Defendant alleged in his answer that before said first day of June, 1882, he was evicted from the demised premises by reason of the fact that, owing to the improper character and condition of the plumbing work and other appliances in said demised premises and said building, said demised premises became and were untenantable and unfit for use and occupation by defendant and his family and household, wherefore he vacated said premises. Saulesbury L. Bradley died pending the action, and it was continued in the name of Mary Bradley, as his administratrix, as plaintiff.
    At the trial the jury found a verdict for defendant, and a motion by plaintiff for a new ti'ial on the minutes was denied, and judgment for plaintiff was entered on the verdict. From the judgment and order denying her motion for a new trial plaintiff appealed to the General Term of the City Court, which affirmed the. judgment, and from this decision plaintiff appealed to this court.
    
      
      Thomas 0. JEnnever, for appellant.
    
      Coudert Brothers, for respondent.
   Charles P. Daly, Chief Justice.

This was an apartment house known as the Oakland Flats, the general duty of keeping which in repair was upon the landlord, and not upon the tenants of the separate apartments, each tenant being answerable only, under the covenant in his lease, for such repairs as were necessary in his separate apartment or suite of rooms occupied by him. It was the duty of the landlord to keep the general plumbing work of the house in repair; and the defendant, as the occupant of a separate suite of apartments, was bound only to make such repairs in the plumbing therein as required no change in or were independent of the general plumbing work of the house.

It was proved by the defendant’s witnesses that the defendant’s wife and servants were taken sick by inhaling a deleterious gas which permeated the defendant’s apartments, and which did so, not from any neglect by him to make such repairs as were incumbent upon him, but from the defective condition of the general plumbing work of the house. The physician attributed the illness of defendant’s wife as well as of two of his servants, to what he described as “ bad hygienic surroundings and bad drainage.” He said that the ventilation of the apartments was good, and that there was sufficient cold fresh air in the water closet; but it was, he said, the bad hygienic surroundings, by which, he said, he meant that the sewer gas was not properly carried off, and came back into the house. He testified that when he examined the trap in the house, during his second visit, in May, he smelt a very bad odor, as if the sewerage was not carried off. He came to this conclusion, he said, after he had investigated all the causes that might produce malarial fever and sore throat of the defendant’s wife and malignant sore throat of one of the servants. Having come to this conclusion, the physician sent a note to the Board of Health, in consequence of which a physician, Dr. Nealis, was sent by the Board to examine the house, who found, as he said, that there was no inlet air pipe, and no main house traps or sewer fixtures, and .no proper ventilation to prevent siphonage and suction from the traps; siphonage being described by the witness as “ the exhaustion or suction of water from a trap, leaving it unsealed by the water, and permitting the sewer gas to pass into the rooms the same as if the trap were lying open.” The tendency, he said, from the want of what he called “ back airing in the general arrangement of the plumbing of the house ” would be forth e gas to generate in the sewer and pass .in the pipes through the building; and, in case any defect existed, into the rooms ; and he considered the manner of the construction of the pipes dangerous, as it might tend to produce siphonage.

■ An order was made by the Board of Health requiring the landlord to have certain changes made in the general plumbing work of the house, among which he was directed to ventilate and complete the trap of the basins in the apartments occupied by the defendant, which were required to be ventilated above the house by a two inch pipe extending two feet above the roof. This order was made about the middle of Maj-, but nothing was done by the landlord ; and on- the last of May, two weeks after the order was given, the defendant removed from the apartments.

On the 22d of June, more than a month after the order was given, the Board of Health sent an inspector to the flats to see if the order had been obeyed, who reported that none of the details or requirements had been complied with, and it was not until some time in July, after a second inspection, that a report was made that the order of -the Board of Health had been complied with.

The plaintiff called as witnesses an architect, a plumber, a physician and the janitor of the building, who controverted the testimony of the witnesses of the defendant in many substantial particulars; but we must assume, upon all questions of fact upon which there was any conflict, that the jury from their verdict believed the witnesses of the defendant. We must assume, therefore, upon the testimony of the defendant’s witnesses, that the illness of the defendant’s wife and servants was due to a malarial or poisonous gas in the apartments occupied by them; and that this unhealthy condition of the apartment was owing to the defective condition of the general plumbing work of the house, of which the landlord was fully notified by the orders he received from the Board of Health, and which could have been removed if he had complied with those orders, as he was bound to do; that the defendant waited for two weeks, and finding that nothing was done on the part of the landlord, that he left under the justifiable apprehension that he was imperilling the health and possibly the life of himself and family by remaining.

This state of facts established a constructive eviction. If a tenant is deprived, by the wrongful act of-the landlord, of the beneficial use of the premises and is compelled thereby to quit and abandon them, it amounts to what has be¡en called a constructive eviction, and the tenant is thereafter relieved from the payment of rent (Dyett v. Pendleton, 4 Cowen 581; 8 Cowen 727; Edgerton v. Page, 1 Hilton 320; 20 N. Y. 281; Cohen v. Dupont, 1 Sandf. 260 ; Halligan v. Wade, 21 Ill. 470; Preston v. Jones, 2 Ired. Eq. 350; 6 Bac. Abr. Rent, L. 44; Taylor’s Landlord and Tenant § 378).

The unheal thy and perilous condition of the apartments occupied by the defendant, and the landlord’s neglect for two weeks to do what the Board of Health required him to do, was, in my opinion, as good a ground for the defendant’s quitting the apartments, after he had waited for a fortnight for the landlord to comply with the order of the Board of Health, as the landlord bringing lewd women upon the premises, as in Dyett v. Pendleton (supra), or the landlord or his family constantly muffling the defendant’s door bell so as to prevent his knowing when visitors called upon him, as in Cohen v. Dupont (supra).

The first case was an act of immorality on the part of the landlord; the second, an unjustifiable annoyance of the defendant in his business as a dentist; and the wrongful act of the landlord in the present case was compelling the tenant to occupy the premises at the peril of his health, and possibly of his life, by neglecting to do what the landlord was ordered to do by the public authorities, and which it was incumbent upon him to set out about doing at once if he expected his tenant to remain in the premises. Having remained there a fortnight afterwards and nothing being done, the defendant, in my opinion, was justified in quitting and abandoning the apartments, and, being abandoned under such a state of facts, it amounts in law to a constructive eviction, as fully, in my judgment, as did the facts in the cases above cited.

The question in the case was fairly put to the jury by the judge. He said that if the illness of the defendant’s wife was caused by the unhealthy sanitary condition of the house, which was not a mere escape of sewer gas, but the result of a defect in the construction, which rendered the escape of gas in the closet a permanent thing, so that the apartments became unfit for occupation and dangerous to life, that the defendant had.a right to remove from the apartments, and was thereafter discharged from the payment of rent; that the question, therefore, upon the evidence, was whether there had been such a constructive eviction and prevention of the free enjoyment of the apartments as to relieve the defendant from paying rent for them.

The jury found that there was, and I think that the judgment entered upon the verdict should be affirmed.

Larremore,. J.

Legislative enactments have repeatedly narrowed and controlled the conventional relation of landlord and tenant, as established by the common law. Prominent as a subject of recent consideration is that of “ hygiene,” which seems to imply that all premises that are demised should be in a healthful condition. A Board of Health in this city supervises and directs action in this respect, and courts of justice cannot ignore its action. Whatever, under its direction, conduces to public health and safety, must be regarded as a necessary police regulation, and enforced accordingly.

In this case, the verdict of a jury has established the fact of a constructive eviction from the premises in dispute, and notwithstanding the doubt of the learned appellate court of the first instance as to the rule of law, I incline to the belief that cases of this character must hereafter be decided upon the distinctive facts as presented by the whole evidence in each particular case.

I find no reason to disturb the verdict of the jury, and think the judgment appealed from should be affirmed, with costs.

Beach, J., dissented.

Judgment affirmed, with costs.  