
    W. K. Post, Respondent, v. Julius Blankenstein, Appellant.
    Appeal from a judgment in favor of plaintiff.
    E. Wilmann, for appellant.
    W. K. Post, for respondent.
   Per Curiam.

It is unnecessary for us to determine whether the defendant was or was not, in fact, actually evicted from a part of the premises, because he consented to the landlord’s doing what the landlord did do. In his letter of the first of July, the defendant wrote the plaintiff, as follows: “In all fairness to me, I suggest some allowance should be made me for the inconvenience myself and family will be put to by reason of the necessary repairs. I therefore suggest you allow me rent free from the time the repairs commence until the work is completely finished.” To this the plaintiff replied as follows: “ I think that your request is a fair one and will allow you to deduct the rent pro rata for the time that the work is going on, which disturbs you materially. You can deduct the above allowance from the August rent.”

We are*of opinio^ that the landlord promised to allow the tenant to deduct for the time that the work on the premises was going on. The evidence shows that it began on the ninéteenth of July and was not finished until the twenty-eighth of September, and that, in view of the agreement between the landlord and tenant above referred to, the tenant was entitled to a pro rata deduction for the time above specified. The landlord brought his proceeding to dispossess the defendant for the nonpayment of the rent or the whole of the month of September. It may be that the landlord was under no obligation to make any allowance to the defendant, but a claim for an allowance was made by the defendant and was acquiesced in by the plaintiff, and the letters of July first and July sixth were in effect the settlement of a contest between the plaintiff and the defendant, and therefore the agreement of the plaintiff to allow a deduction was not without consideration.

At the close of plaintiff’s case, the justice before whom the case was tried declined to allow the defendant to show, among other things, that the work was not finished until the nineteenth of October, and gave the defendant an exception to this ruling. Wé are of the opinion that this also was error.

Present: Truax, P. J.; Scott and Dugro, JJ.

Judgment and order reversed, with costs.  