
    Herbert Coope, Appellant, v. Alfred G. Kollstade, Respondent.
    (Supreme Court, Appellate Term,
    November, 1900.)
    Eviction — When the question is for the jury.
    Where, in an action for rent, the tenant justifies an abandonment of the premises by proving that a pump directly under his letting caused a disagreeable thumping noise lasting several hours each day, a verdict should not be directed for the landlord, as the jury must decide whether such a noise constituted a nuisance and hence amounted to a constructive eviction.
    
      Appeal from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Mew York, tenth district, borough of Manhattan.
    Greene & Stotesbury, for appellant.
    Philbin, Beekman & Menken, for respondent.
   Per Curiam.

It is now well settled that a physical eviction is' not necessary to exonerate a tenant from the payment of rent, but such exoneration follows when the landlord’s acts, though not amounting to a physical expulsion, are of so pronounced and offensive character as to create a nuisance, which, by preventing the reasonable use by the tenant of the premises, affects directly the consideration of the contract between the landlord and the tenant. Sully v. Schmitt, 147 N. Y. 248. To the same effect is Home Life Ins. Co. v. Sherman, 46 N. Y. 372, in which calse it was held that any interference on the part of the landlord, which impairs the beneficial enjoyment of the premises, such as the creation of a nuisance in another portion of the same '' building, is a sufficient disturbance to constitute an eviction, The evidence shows that there was a pump directly under that portion of the premises occupied by the defendant; that this pump caused a vibration and made a rumbling noise which some of the witnesses designated as a thumping, disagreeable noise, which could be heard all over the premises occupied by the defendant, and which continued for several hours each day. Whether this noise was or was not a nuisance, was a question to be determined by the jury, and, therefore, the plaintiff’s motion to direct a verdict in his favor was rightly denied.

There were no exceptions to the charge of the court, and, therefore, it must be'held, that there was no error in such charge.

This case is to be distinguished from McLaughlin v. Bohm, 20 Misc. Rep. 338, in which case it was held that .there was a question of fact' as to the disturbance of the tenant’s possession, while in this case there is no such question. Judgment affirmed, with costs.

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

Judgment affirmed, with costs.  