
    Lee G. Lawrence and Frank J. Menzie, as Trustee, etc., Landlords-Respondents, v. The Edwin A. Denham Company, Tenant-Appellant.
    (Supreme Court, Appellate Term,
    April, 1908.)
    Landlord and tenant — Rent and advances — Eviction — Interference with ingress and egress.
    Where the second floor of a loft building is leased without conditions of any kind as to ingress or egress, the tenant has the free and unrestricted right to enter and depart therefrom at any hour on any day; and where, in an action for rent, it appears that, upon many occasions during the term when its business affairs required the use of the premises, the tenant was deprived of entrance to the building by the landlord, against which action the tenant protested and persistently insisted upon its right to enter the premises, a case of actual, partial eviction was made out which suspended the payment of the rent and constituted a defense to the action.
    Where the application of the tenant for a stay of two days to perfect an appeal in summary proceedings for nonpayment of rent is denied, payment of the rent at the conclusion of the trial cannot be construed as voluntary and a waiver of the partial eviction.
    Appeal from a final order in summary proceedings to recover possession of leased premises for failure to pay rent, entered in favor of the landlords in the Municipal Court of the city of Hew York, second district, borough of Manhattan.
    Gignoux & Reid (Claude Gignoux and William J. Reid of counsel), for appellant.
    William C. Davis, for respondents.
   Dayton, J.

The lease demised the second floor of a loft building, without conditions of any kind as to ingress and egress. There were no rules for the administration of the building referred to in the lease nor in the evidence. It would seem that the tenant had the unrestricted right to enter upon and depart therefrom freely, at any hour on any day, so long as it conformed to the conditions of the lease on its part.

The evidence is uncontradicted that, on many occasions during the term, the tenant was deprived of entrance to the building by the landlords, when the business affairs of the tenant required the use of the premises. It also appeared that the tenant had persistently insisted upon its right to enter its premises and had protested against the landlords’ refusal of that demand.

A case of an actual, partial eviction was made out, which suspends the rent and constitutes a defense to this proceeding.

The payment of the rent at the conclusion of the trial cannot be construed as voluntary, for the reason that the trial judge denied the application of the .tenant for a stay of two days to perfect its appeal.

Final order reversed and new trial granted, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

Final order reversed and new trial granted, with costs to appellant to abide event.  