
    William J. Krausi, Appellant, v. George Buchanan Fife, Respondent.
    Second Department,
    June 14, 1907.
    Landlord and tenant — eviction by failure to keep plumbing in repair — when no waiver by tenant.
    The landlord of an apartment house containing but one plumbing system, who allows the same to become defective so that waste water from apartments above discharges into the bath tubs and washstands of apartments below and permits the ingress' of sewer gas,- and fails to furnish hot water, is guilty of an eviction and cannot recover rent from a tenant who vacates the premises.' '
    Under such circumstances, although the tenant continues occupancy for a time during which the landlord is attempting to remedy, the defect, he does" not waive his right to terminate the lease.
    Appeal by the plaintiff, William J. Krausi, from a judgment of the Municipal Court of the city of Mew York, borough of Bfooldyn, in favor of the defendant, rendered on the '28th day of Movember, 1906. '
    
      J. J. Kramer, for the appellant.
    
      Joseph W. Welsh, for the respondent.
   Jenks, J.:

I think that there- was an eviction. The defendant leased an apartment in a flat house. His bathroom adjoined his bedroom. -There was but one plumbing system and’ but one hot wnter system' for the house. Roth were defective. Whenever .waste water was emptied from the bath tub in the apartment above, a small part of it was discharged into the.bath tub- of the tenant. Part of the waste water from his stationary washstand also came into his bath tub. And waste water whenever emptied from the stationary wash basin in the apartment above bubbled up in the tenant’s stationary wash basin. He could obtain no hot water for any purpose ; it was only luke. His constant, complaints were heeded so that the landlofd sent his plumber at various times, who worked to remedy these defects, but without success. ' Then after a period of more than two months, the tenant moved out for his sub-tenant. The latter found the same conditions, and her complaints, though likewise heeded, did not result in any change of the conditions, and after three months or more she abandoned the apartment. She testifies that her going was upon the command of her physician as soon as he was told of the condition of things. An inspector of health inspected the apartment two days before her going. He testifies that when the discharge from the sewer-connected fixtures on the upper floor or the floor above it was discharged, it backed up into the bath tub in the third floor,,and also that the trap of the wash basin in the bath room and the trap of the dressing room “ syphoned,” i. e., the flow of water discharged .from each of the fixtures or separately discharged from each of the fixtures would .empty the water out of the trap, leaving an open passageway for the discharge of the sewer air from the sewer to the apartment. These were to my mind' not petty annoyances. To have nothing but tepid water for any purpose was a great drawback. To clean people the fact that their bath tub and their wash basins were in effect the cisterns for part of the soiled water discharged from their neighbors’ use must have been, intolerable. To live in a house where the defective plumbing permitted the upflow of sewer gas is to invite disease. The evils were substantial and like unto those which mark the cases of Sully v. Schmitt (147 N. Y. 248) and Bradley v. De Goicouria (12 Daly, 393; S. C., 14 Abb. N. C. 53). The rule of the latter case cited applies to the case at bar in that the court held, “ 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 repaf; s as were necessary in his separate apartment or suite of rooms occupied Toy him. .It was the duty of the landlord to keep the general plumbing work of the house in repairand the defendant,. as the occupant of a separate suite of apartments, was bound only to make such repairs irr the plumbing therein as-required n;o change in or were independent of the general plumbing work of the house.” The point is made that the continuances Of occupancy were a waiver of any right to terminate the contract. ■ .The tenant was entitled to a reasonable time within which to .abandon the premises, I think that the point is not well, taken in consideration of the fact that the landlord was apparently attempting from time .to time to remedy the defects complained of, and that finally both a physician and a health inspector virtually determined that the premises were positively dangerous.. (Marks v. Dellaglio, 56 App. Div. 299.)

The judgment should be affirmed, with costs;

Hikschbe'eg, P. J.," Woodwabd, Gaynob . and Mtuveb, jj.? ' concurred. , ' . ■

Judgment of the Municipal Court affirmed, with costs.  