
    HEILBRUN v. AARONSON.
    (Supreme Court, Appellate Term, First Department.
    February 15, 1909.)
    1. Landlord and Tenant (§ 178)—Constructive Eviction—Waiver by Retaining Premises.
    Where a tenant took possession of premises in September, and, though bad odors which filled the apartment were immediately present, and dampness arose as soon as steam heat was turned on, remained in possession until the last of the following April, he waived the right to claim a constructive eviction by reason of the odors and dampness.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 713; Dec. Dig. § 178.*]
    2. Landlord and Tenant (§ 178*)—Constructive Eviction—Waiver by Retaining Premises.
    If the fact that the tenant’s child fell sick in January would have any bearing on the question of his waiver, it would not avail him where he did not vacate upon the child’s complete recovery nor until a month after it appeared that the child could be safely moved, and no reason was shown why he did not avail himself of his claim of constructive eviction before January.
    [Ed. Note.—For other cases, see Landlord and -Tenant, Cent. Dig. § 713; Dec. Dig. § 178.*] V ’’
    
      8. Landlord and Tenant (§ 178)—Constructive Eviction—Waiver by Retaining Premises.
    Where a tenant, claiming that premises were infested by noisome odors, mildly complained to the landlord during the first month of his occupancy in September, and appeared to be satisfied by the landlord’s answer that he had instructed the janitor to attend to the matter, and did not again complain until the following February, when he wrote the landlord setting forth some of his complaints, his conduct did not show a forbearance to exercise his right to claim a constructive eviction on account of the condition pending an effort on his or the landlord’s part to restore the premises to a proper condition, which would not have operated to preclude his right to such claim.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 713; Dec. Dig. § 178.*]
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by Monroe E. Heilbrun against Joseph Aaronson. Judgment for plaintiff and defendant appeals.
    Affirmed on the opinion of the court below.
    The opinion of Spiegelberg, J., in the lower court, was as follows:
    At the close of the trial the court held that, upon the uncontradicted facts, the defendant had made out the defense of constructive eviction, but reserved decision on the question whether he had removed from the premises in time to avail himself of that defense. The lease in question ran for one year, beginning October 1, 1907, but it appears that the defendant went into possession some time in the beginning of September, 1907. The causes of the defendant’s complaints were the noisome odors which filled the apartment, and dampness, evidently due to a defect in the pipes. The bad odors commenced immediately when the defendant moved into the premises, -and me dampness as soon as the steam heat was turned on, some time in November. Taking the testimony of the defendant and the witnesses called on his behalf, it leaves very little doubt that he was deprived of that degree of comfort to which he and his family were justly entitled. Although there was no direct proof that the bad odors and the dampness were the result of defective plumbing, there is sufficient evidence in the case to conclude that that was the real cause. The plaintiff did not meet the testimony introduced on behalf of the defendant, but rested his case upon the proposition that the defehdant had waived whatever right he had by remaining in the premises until the last day of April. I am constrained to agree with the plaintiff’s contention. While it would appear from the evidence given by the defendant and his witnesses that life in the apartment was well-nigh unbearable, notwithstanding that fact the defendant and his family remained there for a period of more than seven months, a fact which in itself almost negatives the plea of uninhabitability.
    Mr. Justice O’Gorman, writing the opinion in Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109, 67 N. Y. Supp. 146, says: “The retention of the premises for such a period [five months] after the commencement of the alleged annoyances was a confirmation of the tenancy, and must be treated as an election by the tenant to perform the covenants of the lease and to retain its benefits.” In Kent v. Ward (Sup.) 111 N. Y. Supp. 743, Mr. Justice MacLean says: “Assuming the facts disclosed a constructive eviction by the landlord, might he remain in possession for the first six months of the term, and then in the spring, a convenient season for moving, abandon the premises as of right; for, where the right to abandon premises exists, the tenant must remove with reasonable promptitude after the circumstance constituting and creating the eviction arises, and if he fails to do so his right to repudiate the hiring is lost.” It is significant that the defendant in this case, immediately upon vacating the premises in question, moved to the country.
    
      In Stein v. Rice, 23 Misc. Rep. 348, 51 N. X. Supp. 320, it was held that a period of six weeks constituted a waiver of the alleged constructive eviction by the landlord; and in Ernst v. Wheatley (Sup.) 93 N. X. Supp. 1116, the Appellate Term held that the tenant could not claim that the premises were uninhabitable where he remained for 20 days after the conditions complained of had begun. The defendant seeks to overcome the force of this objection by proving that one of his children fell sick on January 2, 1908, and that, therefore, he was unable to remove from the premises until the day when he actually did. Assuming that this plea can in any event be raised, the physician who treated the child' testified that it could be removed without endangering its health at the beginning of April. The evidence as to the severity of the child’s sickness Is rather inconclusive; but, be this as it may, the premises were not vacated upon the child’s complete recovery, nor is there any reason given why the defendant did not avail himself of his claim of constructive eviction by the landlord before January 2, 1908. The correspondence introduced in evidence does not bear out the defendant’s version as to the aggravated conditions existing in the premises, nor does it show that he was very insistent in demanding from the landlord a redress of the intolerable evils. If he had insisted upon his right to have the defects cured, and remained in possession of the apartment while the landlord attempted to cure them, such forbearance on his part should not be taken advantage of by the landlord. In Lathers v. Coates, 18 Misc. Rep. 231, 41 N. X. Supp. 373, where the tenant was relieved from the obligations of the lease, the odors first became noticeable in November or early in December, and the removal from the premises did not take place until the middle of February, but in that case the tenant had exhausted all the remedies at his disposal to cure the defects, and, in fact, the board of health was called in to make an examination of the plumbing. It does not appear that, anything of that kind was done in this case. In September, 1907, the defendant mildly communicated some of his grievances to the landlord, and seemed to have been satisfied with the answer of the landlord that he had given the janitor instructions to attend to the matter. It was not until February 11, 1908, that the defendant again sought redress by again writing a letter to the landlord setting forth some of his complaints. These letters cannot be considered a forbearance on the part of th'e tenant to exercise his rights pending an earnest effort on his or the landlord’s part to restore the premises to a proper and habitable condition.
    Upon all the facts of the case, I must hold that the defendant has waived his right to claim a constructive eviction by the' landlord.
    Judgment is directed for the plaintiff for the sum demanded in the complaint.
    Argued before GILDERSLEEVE, P. J., and BISCHOFF and McLEAN, JJ.
    Henry J. Goldsmith, for appellant.
    Fixman & Lewis (Clarence M. Lewis, of counsel), for respondent.
    
      
      For other cases see same topic & § numbeb in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Affirmed upon opinion of Mr. Justice Spiegelberg in court below.  