
    Otto Lindwall, Appellant, v. Joseph M. May and Others, Respondents.
    Second Department,
    March 2, 1906.
    Landlord and tenant—eviction by failure of lessor to keep building safe — when damages recoverable for breach of covenant for quiet enjoyment.
    A tenant, holding under a lease with covenant for quiet enjoyment, is entitled to go to the j ury in an action for damages for eviction upon evidence showing that the premises, which were undermined by adjoining excavations and were torn down as unsafe, could have been kept safe by proper care on the part of the lessors. Evidence that the lessors were directed, pursuant to the Municipal Building Code, to make the premises safe shows an obligation cast upon the lessors by ordinance, and if the building was torn down as a nuisance owing to their default, such nuisance was attributable to them. '
    
    Appeal by the plaintiff, Otto Lindwall, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 25th day of November, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Tidal Term.
    
      Robert Stewart [V. L. Haines with him on the brief], for the appellant.
    
      Hugo Hirsh, for the respondents.
   Jenks, J.:

This is an action for damages by lessee against lessors, based upon an eviction in violation. of an express covenant in the lease for quiet enjoyment. During the .term third parties as Owners of adjacent land made excavations^ thereon, for rebuilding-, and the. building demised became Unsafe,- part fell, and the structure, very soon was., destroyed’ for the public safety by or under the orders of the city authorities, ■

The plaintiff was dismissed at the close of his, case, not for failure of proof, hut expressly upon an authority that I think was not controlling. If the plaintiff could show that' a destruction ,of .the building would not have-been required if the lessors had'discharged an .obligation cast upon them, and but.for such destruction- the building'would have remained tenant-able by the lessee, then I think that the dismissal was error, Taylor on'Landlord and Tenant (9th ed. § 309a) says: “ Whatever may have been the dOctrine’of the ancient law, actual ouster or physical dispossession is not now. necessary to constitute a breach of the covenant for quiet enjoyment, The. prevailing doctrine now is, that after a demand or other- hostile assertion of the paramount title the lessee may yield thereto, taking the risk of its being the superior title,- and his attornment or purchase, without any actual change of possession, will be a constructive eviction and breach of the covenant. So an act, which, disturbs the lessee’s possession,, if necessary, although, doiie ostensibly under the direction of the law, may amount to an eviction, Thus if the lessor of a room in a building in a city, having notice from the inspector .of buildings iii that city that the building is deemed by him unsafe, takes down.'the building,, unnecessarily, when, lie. might cause it to; be made safe, as authorized by the statute to do, without taking it down or disturbing the lessor’s possession; this is- a breach - of the covenant. - In such a case, it will be a question of fact whether the' taking down of the building Was necessary.” (See, too, Kansas Investment Co. v. Carter, 160 Mass. 421; also cited in 1 McAdam Landl. & Ten. [3d ed.] 409.) There is evidence, not strong, not, definite, but sufficient to have 'Saved the nonsuit..- The jury might have found that the lessors' were apprised of the danger. Section 22 'of the Building Code, read in evidence, required' them.ás owners to preserve wall or walls,' structure or structures from injury, and so support them that they should be and remain practically as safe as before. such excavation was commenced, and permitted entry upon-the premises where the excavation was made when necessary. The original direction to the lessors under the ordinance was to make the premises safe and secure. It was not conclusively shown that it was impossible for the defendants to have saved the premises from destruction by fulfilling the duty cast upon them by the ordinance.

Again, if the building became a public nuisance through the omission of the lessors to preserve and support it properly, as required by the ordinance, if they could have done so, after they had received due notice, such nuisance was attributable to them. (Ahern v. Steele, 115 N. Y. 203, 209.) If the paramount duty of its abatement involved the eviction of the lessee, I do not see why the reasoning of the rule in Steefel v. Rothschild (179 N. Y. 273, 279 et seq.) does not apply. I do not overlook the principle laid down in Steefel v. Rothschild (supra), and more particularly in Connor v. Bernheimer (6 Daly, 295), Kramer v. Cook (7 Gray, 550), Sherwood v. Seaman (2 Bosw. 127) and Howard v. Doolittle (3 Duer, 464); but it seems' to me that this case is different in that the destruction of the premises and consequently the eviction may have been unnecessary if the lessors had properly fulfilled the obligation cast upon them by the ordinance.

It is quite true, as was said in Burke v. Tindale (12 Misc. Rep. 31, 32; affd., 155 N. Y. 673): “The contingency of the exercise by the city authorities of the power to remove it must have been contemplated by both parties, and has not been guarded against by any provision of the lease,” but the contingency of the exercise of such power consequent upon the nonfulfillment by the lessors of their obligation under the ordinance, was not contemplated.

I recommend that the judgment be reversed and1 a new trial granted, costs to abide the event.

Hirsciiberg, P J., Hooker, Rich and' Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  