
    Marianne O’Gorman, Respondent, v. Walter Harby, Appellant.
    (Supreme Court, Appellate Term,
    October, 1896.)
    1. Landlord' and tenant.
    Where, owing to defects in the heating arrangements of an apartment-house, an apartment is very cold during December, the tenant is justified in moving out in January, the same conditions continuing. And the tenant is not bound to attempt to heat his premises by the use of lamps and gas logs, and to remain in occupation until the defect is remedied, particularly where it appears that no substantial improvement was made in the heating until the first part of the month of February.
    2. Landlord and tenant — Notice to landlord. •
    If, after notice of defects, the landlord proceeds to remedy them with proper diligence, he will be allowed a reasonable time for that purpose, but thereafter the- tenant is justified in abandoning.
    3. Same — Counterclaim.
    Where a tenant is forced to abandon because of defects in the premises, he is entitled to recover, upon a counterclaim, the value "of the premises subsequent to the removal and which he lost by the default of the landlord.
    Appeal by the defendant from a judgment of the justice of the Eighth District Court, in plaintiff’s favor, in an action for the rent. of the premises in an. apartment-house for January and February, the defense being the eviction by reason of plaintiff’s failure to supply the apartment with heat sufficient to make it fit for occupancy as a dwelling place, and to prevent the continuance of loud noises caused by steam pipes in the building.
    
      Hugh L. Cole and George Newell Hamlin, for appellant.
    Richard O’Gorman, for respondent.
   Daly, P. J.

This is an action for the rent of rooms in the apartment-house, No. 25 West Eighty-fourth street, for the months of January and February, payable in advance. The tenant moved out in the first week in January, and resists payment of the rent, and counterclaimed damages on the ground that he was deprived of the beneficial use and enjoyment of the premises, by the failure of the landlord to furnish the steam heat, which the tenant was to receive, and that they thereby became untenantable.

The defense was made out by the evidence, for it appears that owing to a defect in the heating arrangements, over which the plaintiff, as the landlord, had exclusive control, the defendant’s apartments were cold during the month of December, and up to the time he moved out in the first week in January, and that the defect was not remedied until the last part of January, or in February. The landlord’s agent testified that the cause of the insufficient heat was the stoppage in the return of the steam; the point of the stoppage was next to the boiler which was in the cellar; that steamfitters were sent around the latter part of December, and remedied the trouble for' the time being, by attaching a valve to the top of the riser in the defendant’s apartment, but there was further trouble in the stoppage of the return to the radiators, and that this was not remedied until the latter part of January, or, as he afterwards said, until February.

No work was done in December because of a strike in the steamfitting trade. But as the tenant did not move in December, it is not, perhaps, necessary to discuss the question whether the inconvenience resulting from a strike is to fall upon the tenant or upon the landlord; but it can hardly be claimed that such a cause excuses delay by the latter in performing his contract, and that the tenant must meanwhile remain in the apartments, suffer from the cold, and pay the rent.

The facts of the case do warrant us, however, in saying that, in matters of repairing and remedying defects, as between the landlord and the lessee of rooms in an apartment-house, a reasonable rule prevails. If, after notice, the landlord proceeds with proper diligence to do what is necessary, he is allowed reasonable time to remedy the defect. If the tenant waits a reasonable time for him to do the work, and it is not done, he may remove from the premises if he has been and is deprived of the beneficial use and enjoyment of them. In this'case it appears that after .the strike, and in the latter part of December, steamfitters were sent to the apartment,, -who made an alteration in the apparatus, but without preventing the trouble. The true cause was not discovered and remedied apparently until two or three weeks after the tenant moved out. .

The respondent relies upon the principle of Suydam v. Jackson, 54 N. Y. 450; Lansing v. Thompson, 8 App. Div. 54, that the statute (Laws of 1860, chap. 345) has reference only to an injury to the premises, resulting from sudden and unexpected action of the elements or other Causes, and not to gradual'deterioration and decay. But it is clear that the defects in this case wére not the result of the last-named cause, but either of faulty construction, accident or mismanagement by the landlord’s agents, .whose duty it was to keep the steam apparatus in repair. That the defects were discovered and remedied with little trouble, and without extensive reconstruction or repairs, is proof that there had been no gradual deterioration.

The tenant attempted to keep warm by the use of lamps and, gas logs in his apartment; but it cannot be held that he was bound to do this during, a protracted discontinuance of the steam heat, which his lease calls for. In the case of a prompt compliance with a notification of defect in-the heating apparatus'temporary inconvenience must be suffered by the tenant, under a reasonable construction .of the relations between the parties.' But in this case the facts establish that an unreasonable infliction was imposed upon him, and his abandonment of the premises was justified.

It would seem that the tenant-had made out a good defense to. the February rent and was entitled to counterclaim as against the January rent, which was payable in advance (Giles v. Comstock, 4 N. Y. 270), for the value, of the premises after his removal therefrom, which he lost through defendant’s default. Denison v. Ford, 7 Daly, 384.

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

McAdam and Bischoff, JJ., concur.

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