
    John McLaughlin, Respondent, v. Julius Bohm, Appellant.
    (Supreme Court, Appellate Term,
    May, 1897.)
    1. Eviction — Sound of pump.
    The noise of a properly-constructed and operated pump in an apartment-house is not a ground for complaint and cannot be made a basis for a claim of eviction.
    
      2. Same.
    Where the defendant claims that the operation of a pump in the ■cellar caused a distinct vibration in his apartment, while the tenant . who preceded him testifies that during his occupation there was no vibration, the decision of the justice will not be disturbed.
    3. Same—'Evidence.
    Evidence as to the operation of the pump prior and subsequent to the defendant’s occupancy is admissible, where it is shown that the conditions were the same,
    Appeal by defendant from a judgment of the justice of the Seventh District Court in favor of plaintiff for $62.50, besides costs in an action for the rent for the month of December, 1896, of ¡in apartment on the first floor "of premises 111 East Eighty-seventh street. The action was upon a lease for one year commencing October 1, 1896, at. the yearly rent of $750, payable monthly in advance.
    Jos. I. Green, for.appellant.
    Henry S. Wardner, J. M. Wainwright and Strong & Cadwalader, for respondent.
   Dalt, P. J.

The defense to this action for rent was eviction by reason of the disturbance to the tenant’s, possession caused by the operation of a pump in the cellar under the apartment occupied by him. The pump was worked by a gas engine and the sound of its operation was unquestionably audible in defendant’s apartment. This was not, however, ground for abandoning the premises, since a properly constructed and operated pump in an-apartment-house is not ground of complaint.

The testimony on the part of the defendant tended to show that the disturbance of the occupation from this cause was extraordinary; that the vibration caused the chandeliers to rattle; crockery and glassware to fall from shelves; plaster to fall, and produced an illness akin to sea-sickness in defendant’s wife. In view of the fact that the house was not much more than a year old and that the first floor was constructed of iron beams with concrete and double flooring and sixteen-inch walls the testimony seems hardly credible.

But a question of fact was presented by the testimony of a former tenant of the same apartment, who had lived there with his wife and child and his wife’s father, mother and sister thirteen monlhs immediately preceding defendant’s tenancy, and who stated that there was no such vibration when the pump was operated. Tins was not the only evidence on defendant’s part on the issue but it was the most important; and the decision of the justice upon the conflict thus presented cannot with reason be disturbed. It was tenant against tenant, experience against experience, but above all, disinterested against interested testimony. The justice had the witnesses before him and could judge as to how far any one exaggerated. It is not possible to say that the defendant’s proof preponderated.

It is claimed that the justice erred in admitting evidence of the operation of "the pump prior and subsequent to the defendant’s occupancy. But as it was shown that the conditions were the same the evidence was clearly admissible. Harroun v. Brush Elect. L. Co., 12 App. Div. 126; Campbell v. U. S. Foundry Co., 73 Hun, 576; Woolsey v. Trustees, etc., 84 id. 236.

Judgment affirmed, with costs.

McAdam and Bischoff, JJ., concur.

•Judgment affirmed, with costs.  