
    NEW YORK CITY COURT.
    Lawrence, appellant, agt. Burrell, respondent.
    
      Landlord, and tenant--Facts which constitute a constructive eviction, and justified a tenant’s abandonment of premises.
    
    In an action against the tenant of rooms in an apartment house, for rent, it appeared that the steam heat agreed by the landlord t.o be supplied was inadequate; that additional heat became essential to a proper enjoyment of the premises; that the flues and chimneys were defective or improperly constructed; that her apartments were often filled with dense, smoke, and that the elevator service was inefficient:
    
      Held, that these grievances were an obstruction to the beneficial enjoyment of the premises, constituting a constructive eviction, and justified the tenant’s abandonment.
    
      General Term,
    
    January, 1886.
    
      Before Hawes, Hall and Browne, JJ.
    
    Appeal from a judgment of the defendant, entered upon a. verdict, and from an order denying a motion for a new trial
    
      George W. Stephens, for appellant.
    
      Ira D. Warren, for respondent.
   Browne, J.

The question arising upon this appeal is, whether the facts urged by the defendant in her exoneration from liability for rent under the terms of the lease, in evidence, constitute a constructive eviction, and justified her in abandoning the premises.

A definition of eviction, well applied to the case at bar. is found in McAdam's Landlord and Tenant (at p. 478), where it is said, that “ an eviction is where there has been an obstruction to the beneficial enjoyment of the premises, and a diminution of the consideration of the contract, by the acts of the landlord, or with his permission, or by paramount title, although these acts do not amount to a physical eviction, if they axe so illegal and monstrous as to be equivalent to it”

The defendant established on the trial that tbe beating apparatus in the premises occupied by hex’, and in fact throughout the entire building, was inadequate for the purposes of supplying sufficient warmth to the inmates; that it became necessary in addition to build grate fii'es to heat the rooms, but that the flues and chimneys were defective or so constructed that, they reversed tbe laws of nature, and instead of carrying the smoke and gases from tbe grate fires skyward. to commingle with the outer atmosphere, can ed them to descend into tbe apax-tments occupied by the defendant; that ber rooms were frequently filled with smoke not only from her own fires, but from those maintained by other tenants in tbe bouse; that by reason of the density of the smoke it was sometimes found impossible to distinguish objects across tbe room, and often in the coldest and most inclement weather it became necessary to throw open the windows to permit the smoke to leave the rooms, rendering her occupancy vexy trying, an annoyance and a nuisance.

It was also contended by tbe defendant that the elevator service was inefficient, and tbat sbe was frequently deprived of the use of tlxe elevator in carrying ber to and from ber apartments, on the fourth floor of the building.

The questions were litigated between the parties, and the facts submitted to tbe jury, and tbeir finding in favor of the defendant affirmatively established tbe facts that the steam heat agreed by tlie landlox’d to be supplied was inadequate; that additional beat became essential to a proper enjoyment of the premises; that the flues and chimneys were defective or improperly constructed; that her apartments were often filled with dense smoke, as she contended; and that the elevator service was inefficient. All these questions were properly presented ter the jury as questions of fact, and their finding in defendant’s favor is conclusive as to them.

We are of opinion from axi examination of the evidence that the jury could not well have found otherwise, as the proof was ample.

The question that remains is whether these grievances were an obstruction to the beneficial enjoyment of the premises. We think they were. Apartment houses, represented to contain upon one floor all the conveniences of the usual and ordinary dwelling houses, are assumed to be constructed in a manner calculated to conduce to the comfort and enjoyment oi the inmates in the same manner as the more commodious dwelling houses, and the existence of any such unlooked for discomforts as shown to have existed here, seriously interfering with and affecting the tenant’s beneficial enjoyment of the demised premises, would justify the tenant’s abandonment and amount to a constructive eviction.

A careful examination of the record discloses no error committed in the reception or rejection of evidence warranting interference with the verdict, nor do we find any objectional matter in the learned judge’s charge to the jury, which on the whole we deem as favorable to the plaintiff as circumstances permitted.

Judgment affirmed, with costs to respondent

Hall and Hawes, JJ., concurred.  