
    Phil Tannenbaum, as Agent of Walter Kraus, Appellant-respondent, v. Brattie Jet Products, Inc., Respondent-Appellant.
    Supreme Court, Appellate Term, First Department,
    December 1, 1960.
    
      Solsman & Kaplan (Jacob A. Salsman of counsel), for appellant-respondent. Geiger & Geiger {Ernest O.- Geiger of counsel), for respondent-appellant.
   Per Curium.

The interruption of the elevator service constituted neither a constructive nor a partial eviction. The tenant showed no defense to the rent sued for. However, the tenant might well have a counterclaim for breach of a term of the lease and the resulting damages measured by the difference in the value of the demised premises with and without elevator might well approximate the abatement allowed. In reaching conclusions on this question the clauses of the lease would he the determining factors as to whether the interruption constituted a breach. As these questions, were neither pleaded nor properly presented, the interests of ‘justice require a new trial. It further appears that the actions might well be consolidated and an amended, answer pleading a counterclaim allowed. .' •

The final order should be reversed and a new trial ordered, without costs to either party as against the other.

Concur—Hecht, J. P., Steuer and Timer, JJ.

Final order reversed, etc.  