
    Samuel November et al., Respondents, v. John C. Wilson, Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Landlord and tenant — Termination of relation — Failure to repair: Rent and advances — Rights and liabilities — Eviction.
    Where the tenant of the first flat of an apartment house covenants to take care of the apartment and suffer no waste or injury, and to repair and make good any damage occasioned by “ his own neglect or carelessness,” in an action for rent, he is entitled to show that, after the making of the lease and without fault on his part, the premises became unfit for occupation by reason of dampness, leakage of water into said premises, cold, lack of protection and negligent and insufficient management of the boilers and other machinery on the said property and dangerous to the life and limb of defendant and his family; such facts, if proven, constitute a constructive eviction which justify him in vacating the premises.
    Appeal by the defendant from a- judgment in favor of the plaintiffs rendered in the Municipal Court of the city of New York, twelfth district, borough of Manhattan.
    Job E. Hedges, for appellant.
    Issac Fromnie (S. Livingston Samuels of counsel), for respondents.
   Scott, J.

Plaintiffs brought this action to recover rent for the months of May to September, 1905, inclusive, under a written lease executed by the parties, for the term of one year, from October 1, 1904, to October 1, 1905. The defendant admitted the making of the lease, that the rent ■claimed by plaintiffs had not been paid and set up as a defense that, after the making of the lease and without fault ■of the defendant, the premises became untenantable, unsafe and unfit for occupation by reason of dampness, leakage of water into said premises, cold, lack of protection and negligent and insufficient management of the boilers and other machinery on the said property and dangerous to the-life and limb of defendant and his family ”. Another defense was set up in the answer which need not be considered. The tenant vacated the demised premises in April, before the-first installment of rent sued for became due. Upon the-trial, the defendant took the affirmative of the issues and asked several questions tending to show the condition of the-premises in and during the month of April, "1905, all of which were excluded by the trial justice who stated, in making his ruling, that the only defense the defendant was-entitled to establish under his answer was that contained in the second defense. We think that the allegations of the answer set up the defense of a constructive eviction. The lease was introduced in evidence and shows that the premises-leased to the defendant were the first flat of an apartment house. The tenant covenants in the lease to take good carecí the apartment and to suffer no waste or injury and repair and make good any damage occasioned by “ bis own neglect or carelessness ”, and this clause is negatived by the allegation contained in the answer. Enough is set forth in the-pleading, read in conjunction with the lease, from which it can reasonably be inferred that some of the acts charged were within the control of the landlord and done or permitted by him and which, if proven, would constitute a constructive eviction.

The judgment must, therefore, be reversed and a new trial ordered.

Giegebich and Gbeeitbaum, JJ., concurs.

Judgment reversed and a new trial ordered, with costs to appellant to abide event.  