Wells v. Caro

74 Misc. 87, 131 N.Y.S. 573

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1911
• Status: Published

Opinion

Seabury, J.

This is an action on a written lease to recover rent. The defendant pleaded an actual partial eviction. During the term of the lease, the landlord reconstructed the building in such manner that the defendant was deprived of the usual method of ingress and egress. The use of the elevator was discontinued. The defendant also attempted to prove that the stairway leading to the demised premises was removed. The evidence on behalf of the defendant was limited to*a very narrow scope by the adverse rulings of the learned trial court. The request of the defendant to go to the jury upon the issue of eviction was denied, and the court directed a verdict in favor of the plaintiff.

There seems to have been three reasons why the court directed a verdict for the plaintiff: First, that the hill of particulars alleged that the defendant had been evicted from the entire premises; second, that the lease did not contain a covenant, of quiet enjoyment; and, third, that the defendant did not remove from the premises. ¡None of these reasons justified a decision adverse to the defendant.

The purpose of a bill of particulars is to amplify the pleading, not to contradict it. When a clause in a bill of particulars is contradictory of the allegation of the pleading which it is intended to amplify, it should, be disregarded. Certainly it cannot be held to prevail over the allegation of the pleading. Ap&rt from this consideration, which assumes that' the court below was correct in regarding the bill of particulars as contradictory of the pleading, we think that it merely intended to state, not that the defendant had been deprived of the whole of the premises demised, but that, by being deprived of a substantial part of the premises, the beneficial use of the whole of the premises was affected.

It is not necessary/ in order to support the plea of eviction, that the lease should have contained a covenant of quiet enjoyment. This covenant, for the purpose of permitting proof of an actual partial eviction, is implied. ¡Nor was it necessary for the defendant to have vacated the premises in order to sustain this plea.

We think that the record shows that the court below confused the rules applicable to constructive eviction with those applicable.to an actual partial eviction. These distinctions are fully discussed in Jackson v. Paterno, 58 Misc. Rep. 201; affd., 128 App. Div. 474; and it is not necessary to enter into a further discussion of them in this place.

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

Guy and Cohalau, JJ., concur.

Judgment reversed.