
    Richard Lathers, Appellant, v. Foster Coates, Respondent.
    (Supreme Court, Appellate Term,
    October, 1896.)
    1. Landlord and tenant — Abandonment.
    Where, for a considerable period of time, there are foul and offensive smells in an apartment and in the halls of a building, resulting from holes in the plumbing large enough to be visible, defects in the soil and waste pipes and in the joints, making the premises unfit for occupany, the tenant is justified, under chapter 345 of the Laws of 1860, in removing from the premises.
    
      2. Same.
    Where premises are in an untenantable condition, the tenant may abandon, and he is not bound to remain in occupation during a time while repairs are making by the- landlord, and while the premises are in a disordered condition from material which had been torn ■ away to get at the pipes which were covered by floors and walls.
    Appeal by the plaintiff from a judgment of the Eleventh District Court, in favor of the defendant, in an action for three months’ rent of an apartment in the house Ho. 324 West Fifty-seventh street, in this city. The months sued for are March, April and May, 1896. The lease of the premises is dated September 9, 1895,. and is for the term of one year from October 1, 1895, The answer sets up as defense that the defendant was induced to lease the flat by false representations as to the sanitary condition of the plumbing; that the plaintiff negligently permitted the premises to become untenantable, whereby defendant was evicted and that he removed under chapter 345 of the Laws of 1860.
    Joseph Wamsley, for appellant.
    Albridge C. Smith, and Smith & White, for respondent.
   Daly, P. J.

The justice found that the proof clearly established the presence, for a considerable period, of foul and offensive smells and odors in the defendant’s premises, and in the halls of the building in- question, which were a menace to the health and comfort of the defendant and his family, and justified him in abandoning the premises; that the extent of these nuisances was admitted by the plaintiff’s own witnesses; that they seriously interfered with the beneficial enjoyment of the premises, and could have been easily cured by the plaintiff by the application of proper remedies, which he did not attempt with reasonable diligence. And, as the premises became unfit for occupancy,' and their condition made it necessary for defendant to remove, the defense of eviction was made out. Citing Tallman v. Murphy, 120 N. Y. 346.

It is not possible to see how the justice could have come to any other conclusion. The defendant moved about the middle of February. Odors first became noticeable in Eovember or early in December, and repeated complaints were made by the tenant to the superintendent. Disinfectants, so-called, and perfume's were resorted to without effect. Finally the board of health intervened, and extensive repairs were made upon the plumbing throughout the building. Holes large enough to be visible were found in the pipes in the tenant’s apartments, and defects were found in the soil line, the waste lines, and the joints.

While the question as to what amounts to an untenantable condition is essentially one of fact, depending in each case upon the particular circumstances shown, there is, nevertheless, value in former decisions, which may be compared in their facts, with the special case in hand. In Tallman v. Murphy (above), an odor of coal gas sufficient to make the tenants sick, and smoke in some of the rooms, and loud explosions which shook the building, were held sufficient to constitute an eviction. In Tallman v. Earle, 3 Misc. Rep. 76, the smell of burning wood, so continuous and marked as to cause apprehensions of fire, was held sufficient. In Thalheimer v. Lempert, 17 N. Y. St. Repr. 345, a stench arising from defective plumbing, coupled wifh the want of a cold-air box connected with the furnace, was deemed enough. See also in Sully v. Schmitt, 147 N. Y. 248, a stench from the sewer upon adjacent premises of. the same landlord, was held to be tantamount to eviction. It is not alone the. fact that it is a disagreeable odor offensive to the sense of smell, but that it signifies a menace to life or health, and this the testimony shows, that justifies the tenant in abandoning the premises. And so with indications of" unsafety, of damage from fire, or the collapse' of the building. To suffer some inconvenience is one thing; to endanger life or health is another. On this trial an extreme case was made out in favor of the tenant.

The appellant objects that the answer fails to allege that the defects complained of were not due to gradual decay, and that the stat-' ute of 1860 does not contemplate a condition arising from gradual deterioration, but only one dne to some sudden and unexpected action of the elements or other cause. Lansing v. Thompson, 8 App. Div. 54, following Suydam v. Jackson, 54 N. Y. 450. The record does not show that that question was raised at the trial, but on the contrary, appellant’s own witnesses accounted for the defects upon the theory-that the erection of a large and high building upon thé adjacent lot had so affected the landlord’s building as to cause these defects. There was no sufficient evidence that the'breaks in the pipes were caused by the fault of the tenant in allowing articles to "be placed against them; and while the lease provided that the tenant should, at his own expense, make all repairs required to plumbing work, when damaged from misuse or neglect, there was no evidence that the damage arose from any such cause, but rather to causes operating from without the building. But it is further claimed that the premises had been restored to a tenantable condition before the tenant vacated them, and that as the defect did not continue’up to the time of the abandonment, his removal was not justified. Ryan v. Jones, 2 Misc. Rep. 65. In that case the tenant, going out in April, as the cold began to moderate attempted to justify his removal by the landlord’s failure to provide sufficient heat during the preceding cold period. But the circumstances hére are very different. On the 8th of February, the tenant gave notice that he was going to vacate as soon as he could make proper arrangements. On the 14th or 15th of that month he moved out, on which - date the repairs were in progress, the bathroom being then disordered with the debris which had been torn away to get at the pipes that were concealed. Instead of assigning past conditions as a ' reason for removal, as was done in Eyan v. Jones, the defendant assigned a present condition, and the proof justified it. It would be a hardship upon an aggrieved tenant in such cases, if the law should hold, for instance, that he could not hire new premises to which to take his family except at the risk of being held to payment for the old one, if in the meantime the- delinquent landlord should make the delayed repairs.

The judgment should be affirmed, with costs.

MoAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  