Brown v. Kaufman

Appellate Terms of the Supreme Court of New York

Brown v. Kaufman

188 Misc. 1025, 72 N.Y.S.2d 454, 1947 N.Y. Misc. LEXIS 2777

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 24, 1947

StatusPublished

Cited by2 cases

This text of 188 Misc. 1025 (Brown v. Kaufman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Kaufman, 188 Misc. 1025, 72 N.Y.S.2d 454, 1947 N.Y. Misc. LEXIS 2777 (N.Y. Ct. App. 1947).

Pincite

Opinion

Per Curiam.

Memorandum It was error to dismiss the petition on the theory that there was a partial constructive eviction. The tenant’s failure to remove from the premises operates to defeat this defense. (Boreel v. Lawton, 90 N. Y. 293; City of New York v. Pike Realty Corp., 247 N. Y. 245, 247.) If the defense is to be sustained as an actual partial eviction, it must appear that the tenant was deprived of a substantial part of the demised premises. (Hudson Cos. v. Briemer, 135 N. Y. S. 591; Jackson v. Paterno, 58 Misc. 201, affd. 128 App. Div. 474.) Failure to repair a refrigerator in the tenant’s apartment is not an eviction. So, too, it is neither an actual nor a constructive eviction to deprive the tenant of access to a cellar which is in common use and, hence, not a part of the [1026]*1026demised premise. (Adelson v. Katz, N. Y. L. J.,. Jan. 30, 1923, p. 1470, col. 3.) It is not clear from this record whether the landlord and tenant actually shared the cellar space or whether its use by the latter was authorized on any other basis.

The final order should be unanimously reversed upon the law and a new trial granted, with $30 costs to the landlord to abide the event.

MacCrate, Steinbbink and Golden, JJ., concur.

Pinal order reversed, etc.

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Per Curiam.

Memorandum It was error to dismiss the petition on the theory that there was a partial constructive eviction. The tenant’s failure to remove from the premises operates to defeat this defense. (Boreel v. Lawton, 90 N. Y. 293; City of New York v. Pike Realty Corp., 247 N. Y. 245, 247.) If the defense is to be sustained as an actual partial eviction, it must appear that the tenant was deprived of a substantial part of the demised premises. (Hudson Cos. v. Briemer, 135 N. Y. S. 591; Jackson v. Paterno, 58 Misc. 201, affd. 128 App. Div. 474.) Failure to repair a refrigerator in the tenant’s apartment is not an eviction. So, too, it is neither an actual nor a constructive eviction to deprive the tenant of access to a cellar which is in common use and, hence, not a part of the [1026]*1026demised premise. (Adelson v. Katz, N. Y. L. J.,. Jan. 30, 1923, p. 1470, col. 3.) It is not clear from this record whether the landlord and tenant actually shared the cellar space or whether its use by the latter was authorized on any other basis.

The final order should be unanimously reversed upon the law and a new trial granted, with $30 costs to the landlord to abide the event.

MacCrate, Steinbbink and Golden, JJ., concur.

Pinal order reversed, etc.

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Bluebook (online)

188 Misc. 1025, 72 N.Y.S.2d 454, 1947 N.Y. Misc. LEXIS 2777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-kaufman-nyappterm-1947.

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