
    Gerald R. Brown and John H. Golding, App’lts, v. Abram Wakeman, Resp’t.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed December 29, 1891.)
    
    IiANDLOltD AND TENANT—EVICTION.
    Defendant occupied an apartment in certain flats under lease from plaintiffs. Plaintiffs received a notice from the chief clerk of the department of buildings stating that one of the walls had bulged, and that steps should be taken to prevent its becoming dangerous, and that the superintendent desired to see the owners. They thereupon made application to repair, which was granted, and erected four walls, which took away one or more rooms from defendant and rendered the rest almost uninhabitable -during the progress of the repairs. In an action for rent during said time, Held, that the notice received by plaintiffs was mt the notice required by § 507 of the consolidation act, and that the work done by them was voluntary and constituted an eviction from a substantial portion of the premises and suspended the whole rent until the whole premises were restored to •defendant.
    
      Appeal from judgment in favor of defendant.
    Action for rent.
    
      McCall & Arnold, for app’lts; Wakeman & Campbell, for resp’t.
   Fitzsimons, J.

In May, 1889, the plaintiffs as lessors rented, to defendant as lessee an apartment in the Southerland Flats, 709' Madison avenue, in the city, for the period of one year commencing May 1, 1889, the defendant then being in possession thereof under a former letting. It appears that in Ocotober, 1889, the plaintiffs commenced certain alterations and repairs in these premises and completed the same. The time when these repairs were completed the jury evidently believed was in or about May, 1890. They consisted principally in the erection of four brick walls commencing at the foundation and running throughout the building up to the roof, and took away from the suite of apartments occupied by the-defendant one or more rooms and perhaps deprived him of the use of others. The positions of these four brick walls are shown in a diagram in the printed case. It appears that they were built for the purpose of strengthening the front wall of said premises, which had bulged and was probably dangerous. During the progress of this work the defendant was, as before stated, deprived of the use of some part of the demised premises and the part he occupied was rendered almost uninhabitable because of the nature of the work being done.

The rent of the demised premises was $100 per month, and this action is to recover the rent from November 1, 1889, to May 1, 1890, viz : $600. Upon the trial the jury rendered a verdict for defendant from which the plaintiff appeals.

The main contention of the plaintiff upon this appeal is predicated upon the theory, that the defendant is not relieved from the payment of the rent provided for in the lease, because he remained in possession of the demised premises during the continuance of the work just described, and that all such repairs and alterations were made in obedience to an order of the department of buildings.

The plaintiffs, of course, must admit that if their repairs and alterations were commenced and completed of their own volition, that their entry upon and into defendant’s apartments without right for the purpose of carrying out the same was an eviction, and that for the time defendant was so evicted from a substantial portion of the demised premises the rent of the whole suite ceased.

Therefore, the first question presented for our decision is, “Did the plaintiffs voluntarily make the repairs and alterations complained of, or were they made by them under and by virtue of an order of the building department.”

The alterations and repairs indicated were done by plaintiffs because the building in question was deemed unsafe or dangerous, and it is only because of that fact (that the building was; deemed unsafe or dangerous) that the department of buildings would be authorized to require the plaintiffs to do such alterations or repairs.

The law controlling the department of buildings in matters ■concerning alleged unsafe buildings in this city, and the course of procedure to be adopted and followed by said department in such cases, is contained in §§ 507, 509, 510, 511, 512, 518 of chapter ■410 of Laws of 1882 (as amended by chapter 456, Laws of 1885, and chapter 566, Laws of 1887). Section 507 provides “ That all notices directing anything to be done in any building deemed uncafe or dangerous shall be issued by the superintendent of buildings, and shall have his name affixed thereto.”

Section 509 provides that said notice shall require the owner or any person having an interest in such premises to make the same ■safe or secure as directed by said superintendent, and that the person so served shall at once certify to said superintendent his assent •or refusal to comply with the terms of said notice.

Section 510 provides that in case the person served with said notice consents to comply with the terms thereof, he shall be allowed until next day at 1 o’clock, p. M., when he must commence to make the premises safe; it also provides that certain proceedings may be taken by said department in case he fails or refuses to ■comply with said notice.

Sections 511, 512, 518 contain provisions which do not affect this action and are merely cited so as to present all of the sections of said act which apply to cases of this character.

The notice required by § 507 is the initiatory step or proceeding officially taken by the superintendent of buildings in declaring a building in this city to be unsafe or dangerous. Until said notice is issued as in said section provided every building must •be deemed safe and sound, including the premises in question.

I am, therefore, of the opinion that unless the record of this •case shows that such a notice was issued, it must be considered that the alterations and repairs herein referred to were voluntarily done by plaintiffs and were not done in obedience to an order of -the department of buildings, and was consequently the act of plaintiffs and not the act of the municipality.

I have searched in vain the record submitted for the notice required by § 507. The nearest approach to such a notice and upon which the plaintiffs apparently rely in their contention that the work was done because ordered by said department of buildings is a letter addressed to E. E. McCall, Esq., signed by John Shields, chief clerk in said department, in which it is stated that Mr. Brody, the superintendent of buildings, had a survey made of the premises in question and found that the gable wall had bulged two and one-half inches since 1885, and that steps should at once be taken to prevent the wall from becoming dangerous, and for this purpose Mr. Brody desired to see the representatives of the owners at an early day.

This letter is dated October 8, 1889, and is apparently the only communication ever issued concerning said premises, so far as the appeal book discloses. It does not declare the building to be dangerous or unsafe, but anticipates the happening of such an event ; it is not the notice required by said § 507 and evidently was not intended as such by the superintendent. On October 17, 1889, an application was filed, by the alleged owner of said premises to make desired alterations, which was allowed, and the work referred to was commenced and completed thereunder.

It is clear to my mind that the work done by plaintiffs was done because of the suggestion contained in the letter of October 8, and which at that time was not regarded by the plaintiffs or the department of buildings as a proceeding taken under the sections of the law above referred to, although a failure to comply with such suggestion might lead to an enforcement of the law.

Therefore, unless the defendant consented and permitted the plaintiffs to use the part of the demised premises which it is admitted they did use to do the work in question, there was in law an eviction from a substantial portion of the said premises and consequently a suspension of the whole rent until the whole premises were again restored to defendant. With reference to that question the testimony seems to be all in defendant’s favor, he claiming that the eviction commenced in June, ceased about October 1, was again renewed about October 31, and continued until the May following, and that defendant wrote plaintiffs concerning and complained against their intrusion, that he received no written answer to his letter, but that subsequently Hamilton, plaintiffs’ agent, stated to defendant’s wife that the rent would be made all right, but finally stated through their attorneys and personally that they were not liable to defendant for any injury done and that there was no eviction in law, because they were required by the municipality to do said work. As above indicated by me I think this notion was wrong and that they performed the work of their own accord. The jury by their verdict also determined that such eviction continued until May 1, 1890.

I do not think that the reference by defendant’s counsel in summing up to the Equitable Life Ins. Company prejudiced plaintiffs’ cause. I believe the jury decided against the plaintiffs on the merits of the case; besides the remark of the trial justice made immediately after such statement was made and his charge were strong enough to remove any prejudice that any of the jurors may have conceived against plaintiffs because of the said statement; besides this the defendant testified that the plaintiff Golding or Mr. Hamilton told him that the Equitable Life. was the owner of the said premises. This testimony is not disputed. Therefore the statement is based upon testimony in the case the admission of which was not objected to, and therefore it was proper for counsel to refer to it in summing up.

I cannot find any objections taken by plaintiffs which are meritorious enough to reverse the judgment herein.

Judgment affirmed, with costs.

Ehrlich, Ch. J., concurs in result.  