
    Fifty West One Hundred and Sixth Street Corporation, Plaintiff, v. Donald J. Henderson, Defendant.
    Municipal Court of New York, Borough of Manhattan, Tenth District,
    March, 31, 1932.
    
      Max Frank, for the plaintiff.
    
      Max J. Merbaum, for the defendant.
   Toney, J.

This is an action for rent of an apartment, falling due the 1st day of October, 1931, in the sum of $116.67. The tenant interposed an answer setting up, as separate defenses, constructive eviction and tender of payment of $61.67 to cover the period of actual occupancy by the tenant of the premises in the month of October for which month’s rent this action is brought.

Without discussing whether or not the acts complained of and proved by the tenant are sufficient to constitute eviction, it is sufficient to point out that, assuming that the tenant was evicted as claimed by him, nevertheless he would be liable for the rent which became due from the 1st day of October, 1931. The courts of this State have many times held that constructive eviction does not relieve the tenant from payment of rent already due at the time of his abandonment of the premises, even though such rent is payable in advance. (Hayden Co. v. Kehoe, 177 App. Div. 734; Bookman v. Polachek, 165 N. Y. Supp. 1023; Perry-Freeman Co. v. Murphy, 164 id. 74.) The facts alleged and proved on the trial herein may, no doubt, be interposed as defense to the payment of any further claims of the plaintiff for rent falling due after the month of October, 1931. (Edgerton v. Page, 20 N. Y. 281; Sully v. Schmitt, 147 id. 248.) It follows, therefore, that judgment must be given in this action for the plaintiff in the sum of $116.67.  