
    Moritz L. Ernst and Carl Ernst, Respondents, v. David J. Straus, Appellant.
    First Department,
    June 15, 1906.
    Landlord and tenant—when repairing dangerous wall is not eviction.
    A tenant who covenants that the landlord may enter and make such repairs as may be necessary for the safety and preservation of the building is not evicted by tlie acts of the landlord in entering to repair a wall declared to be dangerous by the building department of the city, and which the landlord was compelled to repair by judicial proceedings.
    There can be no actual or constructive eviction without actual abandonment of possession, and alterations made with the consent of the tenant do not amount to an eviction no matter how much they may interfere with his occupancy.
    Appeal, by permission, by the defendant., David J. Straus, from an order of the Appellate Term, entered in the office of the clerk of said court on the 3d day of November, 1905, affirming a judginent of the Municipal Court of the city of New'York, borough of Manhattan, in favor of the plaintiff, entered in the office of the clerk of said court on the 19th day of July, 1905.
    
      David Gerber, for the appellant.
    
      Abraham L. Gutman, for the respondents.
   McLaughlin, J.:

The parties to this action entered into a written agreement by which the defendant leased from the plaintiffs, for the term of six months from February 1 to July 31,1905, the third floor of a building in the city of Eew York for the purpose of manufacturing and selling lace curtains. There was no agreement on the part of the landlords to make any repairs, but the tenant agreed, by the 6th clause of the lease, “ that the said landlords and their agents or other representatives shall have the right to enter into and upon said premises, or any part thereof, at all reasonable hours for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” The tenant went into possession and a short time thereafter a building adjoining was torn down, which rendered one of the walls of this building unsafe or disclosed the fact that it was unsafe, which fact was unknown 'to both parties at the time the lease was given. The defect in the wall having been made to appear, proceedings were taken by the building department of the city against the landlords to have the building declared unsafe and dangerous, which proceeding resulted in a precept of this court directed to the superintendent of buildings, commanding him forthwith to make the wall safe by doing the necessary work, etc. Thereupon the landlords obtained permission to do the work themselves, and for this purpose they made contracts with various persons to do the necessary lyork, in the prosecution of which they were obliged to enter upon the demised premises and occupy a certain portion of it during the work, to the inconvenience and loss of the defendant, and this occupancy continued during the time for which rent is sought to be recovered in this action. The action was originally brought in the Municipal Court, where the plaintiffs had a judgment for the full amount claimed, and on appeal the same was affirmed by the Appellate Term, and from the determination there made the defendant, by permission, appeals to this court.

The sole question presented is whether the occupancy by the landlords— under the circumstances above set forth — excused the tenant from paying rent; in other words, did such occupancy amount to an eviction in law ? If it did, then the right to rent was suspended until the tenant was restored to the full enjoyment of the premises leased. There was not an actual eviction. At most there was a temporary interference with the tenant’s possession with reference to which he contracted when he executed his lease, because he then agreed that the landlords might enter into and upon said premises for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” The repairs and alterations here made were necessary for the safety of the building. This had been determined not only by the building department but by a decree of the court. This seems to have been recognized also by the defendant because he did not in fact abandon the premises, and there cannot be an actual or constructive eviction without an actual, abandonment of possession (Boreel v. Lawton, 90 N. Y. 293); and alterations and improvements to leased premises, made with the consent of the tenant, do not amount to an eviction, no matter how extensive they may be nor how much they may interfere with the occupancy of the tenant. (Olson v. Schevlovitz, 91 App. Div. 405.) Here, the entry for the purpose of making the repairs and alterations was made pursuant to a right reserved in the lease and to which the tenant, by his agreement, consented. Such an entry did not constitute an eviction (Turner v. McCarthy, 4 E. D. Smith, 247) and this irrespective of whether the tenant objected to the re-entry or not, because if he did object it was in violation of his agreement.

I am of the opinion, therefore, that the tenant was liable for the rent because he consented to the making of the alterations, and for that reason the determination appealed from should be affirmed, with costs.

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Determination affirmed, with costs. Order filed.  