
    CITY COURT OF NEW YORK, GENERAL TERM,
    MAY, 1900.
    Edward A. Parmele et al., Respondents, v. The Pulvola Chemical Co., Appellant.
    Appeal from a judgment directed by the court in favor of plaintiffs.
    
      McElheny & Bennett (William M. Bennett, of counsel), for-appellant.
    A. A. Mitchell, for respondents.
   Fitzsimosts, Ch. J.

We have .examined with care the appeal record, and in our opinion it discloses that no actual or constructive eviction occurred. It also appears to us that the premises demised, at no time during their occupancy, were untenantable. All of the evil, unpleasant and probably odorous conditions complained of, were due to the fact that defendant and its subtenants had by their careless conduct brought them about. The alleged defection and bad condition of the plumbing work and cesspool might and could have been easily remedied, if defendant and his tenant had so desired; but apparently they were seeking for some cause that would justify them in vacating the premises, and declaring that such causes rendered the premises untenantable, thus constituting a constructive eviction. The objections complained of could have been easily remedied, the plumbing work repaired and cesspools cleaned and the reasonable expenses thereof charged against the landlord and deducted from the rent, because of his covenants to make all such repairs. They were simple, ordinary repairs and were not, as defendant contends, permanent or substantial repairs, and did not justify defendant in vacating the premises, because not done by plaintiffs.

It was proper for the trial justice to exclude the evidence offered by defendant to sustain his alleged counterclaim. That claim was based solely upon the theory that defendant and his tenants were evicted. As pointed out by us, no eviction occurred and, therefore, no damage could have occurred to defendant upon that score. Besides, we think, that the evidence shows, that the plaintiffs offered to do all repairs reasonably required, if defendant would name them. This it declined to do. When invited by plaintiffs to name them, or accompany him to the premises and point out the objectionable features, it again refused. The actions of defendant in this regard were capricious and unjust, and in harmony with its entire conduct in this matter.

We can find nothing in the record that would justify us in aiding defendant in its scheme.

SoHUCHMArr, J., concurs.

Judgment affirmed, with costs.  