
    Schulte Real Estate Company, Inc., Landlord, Appellant, v. Walter L. Uhl, Tenant, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 8, 1935.
    
      Jerome Eisner, for the appellant.
    
      John F. Harrington, for the respondent.
   Callahan, J.

The defense to this summary proceeding for non-payment of rent is actual partial eviction.

The evidence warrants the finding of the existence of an offensive odor in one of the rooms of the tenant’s apartment which makes that particular room uninhabitable, by reason of which the tenant keeps the door to that room closed, the room being practically empty except that a few articles are stored there. There is a butcher store in the same building below the tenant’s apartment,, and it was testified that the offensive smell was like the smell from decayed meat. But there is no proof as to where or what the odor actually comes from.

The trial judge charged the jury that if they believed that because of the odor the tenant was prevented from occupying the room the tenant was entitled to a verdict, and the jury found accordingly.

While the existence of an intolerable condition not due to bis act or default would warrant abandonment of the premises by the tenant (Barnard Realty Co. v. Bonwit, 155 App. Div, 182), no authority is presented which justified the tenant in using seven rooms of this eight-room apartment for living purposes and the eighth room partly for storage without any obligation on his part to pay rent.

Although a violation was filed against the landlord’s building because of the offensive odor, and such violation might, under chapter 871 of the Laws of 1930, be availed of by a plea of constructive eviction from the malodorous room, and the summary proceeding for non-payment of rent, stayed upon payment of the rent into court (Keogh Landl. & Ten. Summary Proceedings, p. 266), the tenant in this instance did not invoke the statutory remedy.

Final order reversed, with thirty dollars costs, and final order and judgment directed for the landlord, with costs.

All concur. Present — Lydon, Callahan and Shientag, JJ.  