
    The New York State Investing Company, Respondent, v. John L. Wolf, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1914.)
    Landlord and tenant — lease—action to recover rent under written lease—eviction — abatement of acts constituting constructive eviction — appeal.
    Though a tenant must act promptly upon discovery of conditions which he claims constitute a constructive eviction, yet he has a reasonable time in which to move out, and what constitutes a reasonable time is a question of fact.
    In an action to recover the July rent of an apartment under a written lease the defense was a constructive eviction. It appeared that plaintiff about March first erected an electric light in a court-yard outside of the, window of defendant’s bedroom. The light was turned on every night at about ten p. m. when the lights of the halls of the apartment house were turned off. During March and April defendant slept with the shade of his bedroom window drawn down. When the weather became warm, about May first, defendant kept the shade up in order to get more air. The light then shone directly into his room and he claimed that the light which had theretofore been an inconvenience became an intolerable nuisance preventing him from ' sleeping. He protested several times to the superintendent but was informed that the light would remain as it was. Early in June he cut down the light himself, plaintiff promptly restored it and in the latter part of said month defendant vacated the premises. Held, that whether the defendant’s continued occupancy was not in reliance on a reasonable belief that by protests or affirmative acts he could obtain an abatement of the acts constituting, "a constructive eviction and whether his moving out after his efforts were shown to be useless was not a removal within a reasonable time should have been submitted to the jury, and a judgment entered on a verdict for plaintiff by direction of the court should be reversed and a new trial ordered.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, entered upon a verdict rendered in favor of the plaintiff by direction of the court.
    Charles E. Thorn and Harold W. Hastings, for appellant.
    Louis S. Posner (Alexander Lewis, of counsel), for respondent.
   Lehman, J.

The plaintiff sued for the July rent of an apartment under a written lease. The defense is a constructive eviction. It appears that the plaintiff, about March first, erected an electric light in a courtyard outside of the window of the defendant’s bedroom. The light was turned on every night at about ten p. m., when the lights in the halls of the apartment house were turned off. During March and April the defendant slept with the shade of his bedroom window drawn down. When the weather became warm about May first, the defendant kept the shade up, in order to procure more air. The light then shone direct into his room, and he claims that the light which had theretofore been an inconvenience became then an intolerable nuisance, preventing him from sleeping. He protested several times to the superintendent, but was informed that the light would remain as it was. Early in June he cut down the light himself. The plaintiff promptly restored it, and then, on June twenty-seventh, the defendant vacated the premises.

Upon this testimony the trial justice directed a verdict for the plaintiff. It is not disputed that the defendant produced sufficient evidence to raise a question of fact upon the issue of whether he had been substantially deprived of the enjoyment of the premises demised to him, but it is claimed that the direction of the verdict was correct on the ground that the undisputed evidence shows a waiver of the conditions of which he now complains.

A waiver by payment of rent and continued occupancy is usually only a waiver of the conditions existing at that time. In March and April it appears that the conditions were not intolerable, because the defendant could exclude the light to some extent by drawing the blind. I think that the defendant’s continued occupancy during that period might well be construed as a waiver only of the conditions causing inconvenience, and, if these conditions became intolerable through the approach of warm weather, he could then remove from the premises. Marks v. Dellaglio, 56 App. Div. 299. In fact, there is some doubt in my mind whether, so long as the conditions caused only inconvenience, the defendant could have claimed that they amounted to a constructive eviction.

The serious question in the case is whether the defendant’s continued occupancy during the months of May and June constituted a waiver of the conditions existing at that time. It is well established that though a tenant must act promptly upon the discovery of the conditions which he claims constitute a constructive eviction, yet he has a reasonable time in which to remove, and the question of what constitutes a reasonable time is a question of fact. In many cases we have held that a delay of several months does not constitute an unreasonable time, where the tenant remains in reliance on promises of the landlord to remedy the conditions. In this case, however, the landlord did not promise to remedy the conditions. Nevertheless, I think that the defendant did not, by delaying in removing, waive the conditions, if this delay is shown to have been caused not because the tenant was satisfied to receive that part of the enjoyment of the lease which still remained to him, but because he relied upon securing ah abatement of the conditions depriving him of full enjoyment. In this case, it is shown that during this period the defendant not only continued his protests, but even personally assumed to abate conditions caused by acts of the landlord on a part of the premises of which the tenant had no control.

Under these circumstances, it seems to me that it is a fair question of fact for the jury whether the defendant’s continued occupancy was not in reliance upon a reasonable belief that by protests or affirmative acts he could obtain an abatement of the acts constituting a constructive eviction, and whether his removal after his efforts were shown to be useless was not a removal within a reasonable time.

Judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.

Page and Bijub, JJ., concur.

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