Nineteen John Street Corp. v. McNamara

Appellate Terms of the Supreme Court of New York

Nineteen John Street Corp. v. McNamara

136 Misc. 844, 242 N.Y.S. 407, 1930 N.Y. Misc. LEXIS 1310

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 20, 1930

StatusPublished

This text of 136 Misc. 844 (Nineteen John Street Corp. v. McNamara) 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

Nineteen John Street Corp. v. McNamara, 136 Misc. 844, 242 N.Y.S. 407, 1930 N.Y. Misc. LEXIS 1310 (N.Y. Ct. App. 1930).

Pincite

Opinion

Per Curiam.

The proof as to noises and leaks established at most the basis for a constructive eviction. The tenant having remained in possession would not be in a position to take advantage thereof were it not for the permission granted by the lease to do so. This provision in so far as it permits tenant to remain rent free, construed in the light of the harshness thereof and the fact that only a portion of the premises is affected for a small part of the time, must be construed to be in the nature of a penalty in the lease drawn by the tenant. The dámages suffered are the subject of ready ascertainment and should be established on proper counterclaim therefor.

Final order reversed and new trial ordered, with leave to respondent to serve an amended answer within five days, with thirty dollars costs to appellant to abide the event.

All concur; present, Lydon, Callahan and Peters, JJ.

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Per Curiam.

The proof as to noises and leaks established at most the basis for a constructive eviction. The tenant having remained in possession would not be in a position to take advantage thereof were it not for the permission granted by the lease to do so. This provision in so far as it permits tenant to remain rent free, construed in the light of the harshness thereof and the fact that only a portion of the premises is affected for a small part of the time, must be construed to be in the nature of a penalty in the lease drawn by the tenant. The dámages suffered are the subject of ready ascertainment and should be established on proper counterclaim therefor.

Final order reversed and new trial ordered, with leave to respondent to serve an amended answer within five days, with thirty dollars costs to appellant to abide the event.

All concur; present, Lydon, Callahan and Peters, JJ.

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Bluebook (online)

136 Misc. 844, 242 N.Y.S. 407, 1930 N.Y. Misc. LEXIS 1310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nineteen-john-street-corp-v-mcnamara-nyappterm-1930.