Fox v. Murdock

Appellate Terms of the Supreme Court of New York

Fox v. Murdock

58 Misc. 207, 109 N.Y.S. 108

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1908

StatusPublished

Cited by2 cases

This text of 58 Misc. 207 (Fox v. Murdock) 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

Fox v. Murdock, 58 Misc. 207, 109 N.Y.S. 108 (N.Y. Ct. App. 1908).

Pincite

Opinions

Gildersleeve, J.

The action is for rent for the month of June, 1907, under a written lease for the term of one [208]*208year, commencing October 1, 1906, and terminating September 30, 1907. The defendant moved out of the premises the last day of May, 1907, having given plaintiff notice of his intention to move in a letter dated May 3, 1907. The defense to the action is a constructive eviction. As the court below found for the defendant, the appellate court will accept the defendant’s version as correct as to disputed questions of fact. It appears that plaintiff’s superintendent was in the habit of listening at the switchboard or at the telephone in her apartment when defendant’s wire was in use and of making insulting and even slanderous remarks concerning the defendant’s wife to the elevator hoys in plaintiff’s employment. For a long time neither defendant nor his wife knew anything of this nefarious procedure on the part of plaintiff’s superintendent. Consequently it cannot he said that the proof formed the basis for or would justify a'finding that the defendant was annoyed, or disturbed in his possession at the time these acts were going on. Finally, however, when the elevator hoys had been discharged by plaintiff, they informed defendant’s wife of this reprehensible conduct of plaintiff’s superintendent; and thereupon defendant’s wife called on plaintiff and complained to him of the behavior of his said superintendent. There was also some trouble of a minor nature between the superintendent and defendant’s wife, arising from a demand by the former that defendant’s servant use the basement door only in going in and out of the house. A constructive eviction is something done by a landlord, or his agents, which deprives a tenant of the full use, benefit and enjoyment of the demised premises; and such act of the lessor, or his agents, accompanied by an abandonment of possession by the lessee, with reasonable promptitude, is deemed a virtual expulsion of the tenant and, equally with an actual expulsion, precludes the recovery of rent. If the landlord suffers acts to be done which make it necessary for the tenant to remove, or if he permits interference by those acting under his authority which deprives the tenant of the means or power of beneficial enjoyment of the premises, or, at least, materially impairs such enjoyment, such acts must be considered an eviction. [209]*209McAdam Landl. & Ten. 1293; 120 N. Y. 345, 351; 38 Misc. Rep. 300. Furthermore, the landlord is liable for the misconduct of his agent, when perpetrated by the latter in the course of his employment, even though the landlord did not authorize, justify or know of the misconduct. McAdam Landl. & Ten. 848. But, as before stated, the alleged acts of the superintendent not having been made known to the defendant or his wife, personally, or made in their presence or hearing, it cannot be said that the defendant could base an eviction thereon. If, however, after notice to the landlord of the misconduct of his superintendent, the former had permitted the annoyance to continue, he would have been accountable for the acts of the superintendent. But there is no evidence whatever of any continuance of the said misconduct of the superintendent subsequently to the making of the complaint by defendant’s wife to the plaintiff. The inference, therefore, is that such misconduct ceased. So far as the question of laches in moving out of the premises is concerned, it may be said that the peculiar circumstances of the case were such that it cannot be said as a matter of law that the defendant lost the right to repudiate .the hiring by reason of lack of reasonable promptitude in moving out. The question of reasonable promptitude in removing from the premises was a question of fact to be determined by the court, sitting as a jury, from all the facts and circumstances disclosed by the evidence; and his decision on that question should not be disturbed.

For the reasons above stated, the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

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Gildersleeve, J.

The action is for rent for the month of June, 1907, under a written lease for the term of one [208]*208year, commencing October 1, 1906, and terminating September 30, 1907. The defendant moved out of the premises the last day of May, 1907, having given plaintiff notice of his intention to move in a letter dated May 3, 1907. The defense to the action is a constructive eviction. As the court below found for the defendant, the appellate court will accept the defendant’s version as correct as to disputed questions of fact. It appears that plaintiff’s superintendent was in the habit of listening at the switchboard or at the telephone in her apartment when defendant’s wire was in use and of making insulting and even slanderous remarks concerning the defendant’s wife to the elevator hoys in plaintiff’s employment. For a long time neither defendant nor his wife knew anything of this nefarious procedure on the part of plaintiff’s superintendent. Consequently it cannot he said that the proof formed the basis for or would justify a'finding that the defendant was annoyed, or disturbed in his possession at the time these acts were going on. Finally, however, when the elevator hoys had been discharged by plaintiff, they informed defendant’s wife of this reprehensible conduct of plaintiff’s superintendent; and thereupon defendant’s wife called on plaintiff and complained to him of the behavior of his said superintendent. There was also some trouble of a minor nature between the superintendent and defendant’s wife, arising from a demand by the former that defendant’s servant use the basement door only in going in and out of the house. A constructive eviction is something done by a landlord, or his agents, which deprives a tenant of the full use, benefit and enjoyment of the demised premises; and such act of the lessor, or his agents, accompanied by an abandonment of possession by the lessee, with reasonable promptitude, is deemed a virtual expulsion of the tenant and, equally with an actual expulsion, precludes the recovery of rent. If the landlord suffers acts to be done which make it necessary for the tenant to remove, or if he permits interference by those acting under his authority which deprives the tenant of the means or power of beneficial enjoyment of the premises, or, at least, materially impairs such enjoyment, such acts must be considered an eviction. [209]*209McAdam Landl. & Ten. 1293; 120 N. Y. 345, 351; 38 Misc. Rep. 300. Furthermore, the landlord is liable for the misconduct of his agent, when perpetrated by the latter in the course of his employment, even though the landlord did not authorize, justify or know of the misconduct. McAdam Landl. & Ten. 848. But, as before stated, the alleged acts of the superintendent not having been made known to the defendant or his wife, personally, or made in their presence or hearing, it cannot be said that the defendant could base an eviction thereon. If, however, after notice to the landlord of the misconduct of his superintendent, the former had permitted the annoyance to continue, he would have been accountable for the acts of the superintendent. But there is no evidence whatever of any continuance of the said misconduct of the superintendent subsequently to the making of the complaint by defendant’s wife to the plaintiff. The inference, therefore, is that such misconduct ceased. So far as the question of laches in moving out of the premises is concerned, it may be said that the peculiar circumstances of the case were such that it cannot be said as a matter of law that the defendant lost the right to repudiate .the hiring by reason of lack of reasonable promptitude in moving out. The question of reasonable promptitude in removing from the premises was a question of fact to be determined by the court, sitting as a jury, from all the facts and circumstances disclosed by the evidence; and his decision on that question should not be disturbed.

For the reasons above stated, the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

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58 Misc. 207, 109 N.Y.S. 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-murdock-nyappterm-1908.

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