
    Ellen Purcell, Respondent, v. Maurice Leon, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Landlord and tenant — action for rent for month during which tenant vacated premises — annoyance of defendant’s wife by janitor while intoxicated — constructive eviction.
    Where, on the trial of an action for rent for the month during which the tenant vacated the premises, it appears that on the complaint of defendant’s wife the janitor was convicted of disorderly conduct in that while intoxicated he annoyed her by forcing his way into defendant’s apartments and using loud and threatening language, and it is conceded that the janitor’s conduct was upheld by plaintiff and that she retained him in her employ as janitor of the leased premises, there was a constructive eviction and a judgment in favor of plaintiff will be reversed.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, in favor of plaintiff, after a trial by a judge without a jury.
    
      Maurice Leon, for appellant.
    Beekman, Menken & Griscom (Stephen P. Anderton and G. Stanley Shirk, of counsel), for respondent.
   Bijur, J.

This action was brought for rent of an apartment for a month, covered by a lease between plaintiff and defendant.

Defendant claimed a constructive eviction, arid it was not denied that he had vacated the premises before the beginning of the month.

The only question raised on this appeal is whether the facts constitute constructive eviction. It may be said that there is no dispute as to the facts so far as they are presented on this appeal.

Defendant’s proof consisted of the introduction in evidence of the complaint, minutes and record of the conviction of plaintiff’s janitor, in a magistrate’s court, on the ground of disorderly conduct, defendant’s wife being the complaining witness and the charge being that the janitor while intoxicated annoyed defendant’s wife by forcing his way into defendant’s apartment and using loud and threatening language. On this charge the janitor was convicted and fined ten dollars. Although the introduction of this testimony was objected to, it is not necessary to pass upon the value of the form of the objection taken to the introduction of this evidence, because, for the purposes of this appeal, it must be treated as a part of the record.

At the close of the trial it was conceded that the janitor’s conduct was upheld by the plaintiff and that she still retains him in her employ as superintendent and engineer or janitor of this apartment-house.”

In support of his claim that there was no constructive eviction, plaintiff’s counsel quotes from the opinion of Page, J., in Manhattan Leasing Co. v. Schleicher, 142 N. Y. Supp. 545. He omits, however, the one sentence which renders the decision pertinent to the case at bar as follows: ‘‘ While we recognize that the tenant should be protected from insult, and that it is the duty of the landlord to use care in the selection of his servants, and if one transcends the proprieties, if necessary to the future enjoyment of the tenant, to discharge him and employ another, he must be given a reasonable opportunity to do so.”

It appears to us that if the janitor conducted himself toward defendant’s wife in the manner shown by the record, and the plaintiff, as landlord, sustained him in this attitude and continued him in her employ, the defendant was constructively evicted.

Seabury and Guy, JJ., concur.

Judgment reversed and new trial granted with costs to appellant to abide event.'  