
    FERGUSON BROS. & FORSHAY v. WARD.
    (Supreme Court, Appellate Term, First Department.
    May 21, 1914.)
    Landlobd and Tenant (§ 172)—Rent—Defense of Eviction—Evidence. .
    In an action for rent of an apartment, evidence helé to show constructive eviction from dampness of the premises. .
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703; Dec. Dig. § 172.*]
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by Ferguson Bros. & Forshay against Horatio J. Ward. From judgment for plaintiff, defendant appeals.
    Modified and af-' firmed.
    Argued May term, 1914, before GUY, BIJUR, and - PENDLETON, JJ.
    Bandler & Haas, of New York City (Harold R. Zeamans, of New York City, of counsel), for appellant.
    Stoddard & Mark, of New York City (Norman Wilmer Chandler, and Sharon Graham, both of New York City, of counsel), for respondent.
    
      
      For other oases soe same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GUY, J.

On July 10, 1913, the defendant leased from the plaintiff a five-room apartment in the premises No. 104-110 East Fortieth street, this city, for a term of one year and two months, at a monthly rental of $133.34, payable in advance. The defendant occupied the apartment until December 3, 1913. This action was brought, and the plaintiff has recovered a judgment for the rent for the month of December, 1913, and the month of January, 1914, less the sum of $66.68 paid by the defendant to the plaintiff. The defense was a constructive eviction, by reason of the continual dampness of the walls of two of the bedrooms. It was conceded upon the trial that the apartment was a first-class.one and in a first-class neighborhood, and this evidenced by the price for rent contracted to be paid. It is needless to recite at length the testimony given- upon the trial. The defendant and his wife first observed the dampness complained of in September, 1913, and at once called the attention of the superintendent- of the building to it, who' promised to attend to the matter, and who said that other tenants in the building had also complained of the same conditions. The dampness continued to manifest itself from time to time, and especially after rainstorms, when it would continue for several days and the defendant repeatedly made complaint to the superintendent, to the agents, and at one time to the owner, but nothing was done to remedy the trouble, or apparently to ascertain its cause, and, the health of the defendant and his wife being affected, the defendant moved out of the premises on December 3, 1913.

The testimony of the defendant and his witnesses was not substantially disputed by the plaintiff’s witnesses. -One of the plaintiff’s witnesses testified that he visited the apartment once before December 3, 1913, and found the walls damp in one room, but that he thought the people “could use the other bedroom.” The superintendent admitted that he found the walls “damp and cold” upon one occasion. I _ think that the testimony established the defense of constructive eviction, and that judgment for the rent for the month of December, 1913, only should have been given for the plaintiff, less said sum paid by defendant.

Judgment modified by reducing the amount of the recovery to the sum of $66.68, and appropriate costs in the court below and as modified affirmed, with costs to the appellant to be offset against the judgment. All concur.  