
    Nottingham Realty Co., Inc., Respondent, v. Swan Cleaners Syracuse, Inc., Appellant.
   Order of Onondaga County Court and judgment of City Court of Syracuse reversed insofar as they allow the sum of $197.57 because of water charges and a new trial granted in the City Court of Syracuse as to that item and otherwise order and judgment affirmed, with costs to the plaintiff-respondent. Memorandum: The record does not support the claim of an actual partial eviction. While there m.ay have been some interference with the use of a common sidewalk by customers of Swan Cleaners, the Trial Judge correctly decided, both as a matter of fact and law, that the interference did not reach the extent or magnitude of an actual eviction, total or partial, that would permit the tenant to remain in occupancy without paying any rent. That portion of the judgment which awards $750 in rent and $326.16 for outside services should be affirmed. The record as to the amount owed by the tenant for waiter charges is so incomplete and confused that a proper review cannot be had. For this reason that portion of the judgment which allows $197.57, the full amount of the water charges claimed to be due, should be reversed and the matter remitted to the City Court for a new trial on this point. All concur, except Bastow and Noonan, JJ., who concur except as to the item for rent and as to that item vote to reverse and dismiss the complaint, in the following memorandum: The evidence established an actual partial eviction because of the structure placed upon the sidewalk which is for the mutual benefit of all tenants in the shopping center and thus an appurtenance to the appellant’s leasehold. That portion of the judgment which represents rent should therefore be reversed and the complaint as to that item should be dismissed. (Appeal from an order of Onondaga County Court affirming the judgment of the City Court of Syracuse, N. Y., in favor of petitioner in a summary proceeding brought to evict for nonpayment of rent and a money judgment for rent claimed.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Vecehio, JJ.  