
    Emanuel E. Fox, Appellant, v. Francis A. Murdock, Respondent.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Landlord and tenant — Rent and advances — Rights and liabilities — Eviction.
    Where an action for rent is defended upon the ground of a constructive eviction, the court, on appeal from a judgment in favor of defendant, will accept his version of disputed questions of fact.
    A constructive eviction is something done by a landlord or his agent which deprives a tenant of the full use, benefit and enjoyment of the demised premises; and such act of the lessor or his agent accompanied by a reasonably prompt abandonment of possession by the tenant constitutes a virtual expulsion of the tenant which precludes a recovery of rent accruing after the alleged eviction.
    The wrongful acts of the superintendent of the landlord, who was in the habit of listening at the switchboard or at the telephone in her apartment when the tenant’s wire was in use and of making insulting and even slanderous remarks concerning the defendant’s wife to the elevator hoys in the landlord’s employment, not having been made known to the defendant or his wife personally or made in their presence or hearing, cannot constitute the basis of an eviction.
    The question of the tenant’s reasonable promptitude in removing from the premises was a question of fact to he determined by the court sitting as a jury from all the facts and circumstances disclosed by the evidence, and his decision upon that question will not be disturbed on appeal.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in- the Municipal Court of the city of Few York, tenth district, borough of Manhattan.
    Francis B. Chedsey, for appellant.
    Frank Trenholm, for respondent.
   Gildersleeve, J.

The action is for rent for the month of June, 1907, under a written lease for the term of one year, commencing October 1, 1906, and terminating September 30, 1907. The defendant moved out of the premises the last day of May, 1907, having given plaintiff notice of his intention to move in a letter dated May 3, 1907. The defense to the action is a constructive eviction. As the court below found for the defendant, the appellate court will accept the defendant’s version as correct as to disputed questions of fact. It appears that plaintiff’s superintendent was in the habit of listening at the switchboard or at the telephone in her apartment when defendant’s wire was in use and of making insulting and even slanderous remarks concerning the defendant’s wife to the elevator hoys in plaintiff’s employment. For a long time neither defendant nor his wife knew anything of this nefarious procedure on the part of plaintiff’s superintendent. Consequently it cannot he said that the proof formed the basis for or would justify a'finding that the defendant was annoyed, or disturbed in his possession at the time these acts were going on. Finally, however, when the elevator hoys had been discharged by plaintiff, they informed defendant’s wife of this reprehensible conduct of plaintiff’s superintendent; and thereupon defendant’s wife called on plaintiff and complained to him of the behavior of his said superintendent. There was also some trouble of a minor nature between the superintendent and defendant’s wife, arising from a demand by the former that defendant’s servant use the basement door only in going in and out of the house. A constructive eviction is something done by a landlord, or his agents, which deprives a tenant of the full use, benefit and enjoyment of the demised premises; and such act of the lessor, or his agents, accompanied by an abandonment of possession by the lessee, with reasonable promptitude, is deemed a virtual expulsion of the tenant and, equally with an actual expulsion, precludes the recovery of rent. If the landlord suffers acts to be done which make it necessary for the tenant to remove, or if he permits interference by those acting under his authority which deprives the tenant of the means or power of beneficial enjoyment of the premises, or, at least, materially impairs such enjoyment, such acts must be considered an eviction. McAdam Landl. & Ten. 1293; 120 N. Y. 345, 351; 38 Misc. Rep. 300. Furthermore, the landlord is liable for the misconduct of his agent, when perpetrated by the latter in the course of his employment, even though the landlord did not authorize, justify or know of the misconduct. McAdam Landl. & Ten. 848. But, as before stated, the alleged acts of the superintendent not having been made known to the defendant or his wife, personally, or made in their presence or hearing, it cannot be said that the defendant could base an eviction thereon. If, however, after notice to the landlord of the misconduct of his superintendent, the former had permitted the annoyance to continue, he would have been accountable for the acts of the superintendent. But there is no evidence whatever of any continuance of the said misconduct of the superintendent subsequently to the making of the complaint by defendant’s wife to the plaintiff. The inference, therefore, is that such misconduct ceased. So far as the question of laches in moving out of the premises is concerned, it may be said that the peculiar circumstances of the case were such that it cannot be said as a matter of law that the defendant lost the right to repudiate .the hiring by reason of lack of reasonable promptitude in moving out. The question of reasonable promptitude in removing from the premises was a question of fact to be determined by the court, sitting as a jury, from all the facts and circumstances disclosed by the evidence; and his decision on that question should not be disturbed.

For the reasons above stated, the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

MacLbak, J.

(concurring). Without determining the question of constructive eviction in this action for rent accruing after vacation by the tenant of the premises leased, by or through acts and conduct of an agent of the plaintiff in interfering with a maid of the defendant and in lending in and out of season a too willing ear at the telephone switchboard, rendering the tenancy, as declared, very unpleasant and annoying, even unbearable, the case is barren of such acts-or conduct later than the middle of March, 1907, and, upon hearsay, later than some time, not appearing, in April, when the plaintiff was informed and, though requested, refused to discharge that agent. Upon the occurrence of circumstances amounting to a constructive eviction, the tenant is put to his prompt election to tolerate what is unwelcome or to remove from the premises. If he does not speedily evince the latter determination he will be held to have accommodated himself to the former alternative. Retention of the premises until the twenty-fifth of May, even upon writ- ■ ien notice dated May 3, 1907, by the defendant that he would vacate and surrender on or before the thirty-first instant, without reason therein, may not, in view of the evidence, be determined to be a prompt election. The judgment should, therefore, be reversed and a new trial ordered.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  