
    Barnard Realty Company, Respondent, v. Carl Bonwit, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Appeal — judgments and orders appealable — in general—summary proceedings to recover lands.
    Landlord and tenant — rights, duties and liabilities in regard to premises— injuries from dangerous of defective condition — liability Of landlord for nuisance — eviction.
    On appeal from an order setting aside a verdict in favor of defendant as contrary to law, all contested questions of fact are deemed established in- his favor.
    In the absence of statute a constructive -eviction can take place only where a tenant is deprived of his enjoyment of the demised premises by the act or omission of the landlord.
    Where leased premises are rendered untenantable without the fault of the landlord, there can be no eviction.
    Bijtjb, J., dissents.
    Appeal by the defendant from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, setting aside a. verdict of a jury rendered in favor of the defendant and ordering a new trial.
    Paskus, Cohen & Gordon (Arthur B. Hyman, of counsel), for appellant.
    John 0., Van Loon, for respondent.
   Lehman, J.

The plaintiff sues .for rent. The defense is constructive eviction. The jury found for the defendant. The trial justice set ¿side the verdict in an opinion which relies mainly on the-case of Jacobs v. Morand, 59 Misc. Rep. 200. The verdict having been set aside as contrary to law, we are justified in considering the jury’s verdict as establishing all contested questions of fact in favor of the defendant. These' facts are that defendant rented an apartment from plaintiff. Shortly thereafter noises as of scampering rats were heard in the walls and ceilings. These noises were sufficient to greatly alarm the tenant’s daughter and pre-' vented the tenants from sleeping. After the lapse of a few days a stench arose in the. maid’s room which spread throughout the apartment. The stench -rendered the apartment untenantable. The plaintiff at the defendant’s request made several holes in the wall and found vestiges ” of a large _ number of rats. It is a fair inference that the stench arose from rats'which died in the walls of the apartment. Under a similar state of facts this court held in the case of Jacobs v. Morand, 59 Misc. Rep. 200, that the fact that an apartment was overrun with vermin constituted no- constructive eviction. In the subsequent case of Madden v. Bullock, 115 N. Y. Supp. 723, this court held that the - defense of constructive eviction is established where “ the evidence shows an almost intolerable condition arising from loathsome stenches of dead and decaying rats which plaintiff undertook unsuccessfully to remove and made matters worse by tearing up and not replacing flooring and by using chloride of lime.” Apparently the facts of this case are the same as the facts in the case under consideration except that there the condition complained of arose partly through the acts of the plaintiff landlord, while here the condition arose from the presence of dead rats. It is this difference in the facts which I think differentiates the law applicable to these two cases. It is too well established to require any citation that in the absence of statute a constructive eviction can take place .only where the tenant is deprived of his enjoyment of the demised premises by the act or omission of the landlord. Where the premises are rendered untenantable without the fault of the landlord there can be no eviction. In this case it does not appear that the rats were introduced through any fault of the landlord, nor does it appear that he failed to perform his duty in attempting to rid the premises of their presence if such a duty devolved upon him. Under such circumstances the tenant must continue .to bear his obligation to pay rent, however great the hardship, unless he has been relieved of this obligation by statute. The statute (Real Prop. Law, § 227) is not, however, broad enough to give him this relief. The legislative sense of relief to tenants has not as yet reached the case of rats, mice, bugs, roaches, or other vermin, and all questions as to them must be decided according to the wisdom of the common-law.” Jacobs v. Morand, supra. The statute gives relief only where the building is destroyed or injured. It gives no relief where the building itself is uninjured but by reason of other conditions the tenant’s enjoyment of the leased premises is interfered with. “ The statute clearly contemplates a physical destruction of, or injury to, the building itself or something within the building for which the landlord is responsible, or over which he has control.” Floyd-Jones v. Schaan, 129 App. Div. 82.

Order should be affirmed, with costs.

Gut, J., concurs.

Bijub, _ J. I dissent. I think that the condition which warranted the tenant’s abandonment of the premises was one under control of the landlord; and that Madden v. Bullock, 115 N. Y. Supp. 723, cannot be distinguished.

Order affirmed, with costs.  