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the building occupied as a hotel by his landlord, and which is insuffi-
cient to carry off the d<^)osit, giving out a disagreeable stench, creat-
ing a nuisance, and rendering the occupation of the leased premises
dangerous to life, and the tenant cleans out the sewer from time to
time, but the landlord continues to maintain it In an offensive condi-
tion by suffering It to be refilled from the adjacent premises as often
as the tenant cleans it, without any effort to change its construction,
these facts constitute an eviction at law, which warrants an abandon-
ment of the premises and exonerates the tenant from thereafter pay-
ing rent

TENANT.— The tenant's covenants in a lease, obligating him to main-
tain the leased premises in good repair and in a cleanly condition, do
not require him to keep them clear of a nuisance caused by a stench
from sewage coming from the landlord's adjacent premises by reason
of the latter*s neglect

In an action for rent the defense of abandonment and surrender of
the premises, upon the ground that they were untenantable and dan-
gerous to life and health, is made out, without any showing that the
tenant was induced to enter into the lease by the misrepresentation or

Digitized by


660 Sully t. Schmitt. [New York^

frand of the landlord, by eridence that daring tbe tenant's occnpa^
lion, the landlord was guilty of afflrmatlye acts causing a nuisance
dangerous to life or health, and against which the tenant was remedi-
less by the performance of any acts called for by his own coyenants.

lord has a right. In the nature of an easement, to continue the use of a
sewer running from premises occupied by him to and under adjacent
premises leased by him to another, but he does not have a right to
maintain it In a defective condition. Injuriously affecting the tenants
possession and making It Impossible or unsafe for him to continue la

Action to recover rent.

Seward A. Simons, for the appellant

Adelbert Moot^ for the respondent

^^ GEAY, J. This was an action to recover rent due to the
plaintiff by the terms of a written lease between her *** and the
defendant, and the defense was that the premises were untenant-
able and dangerous to life and health, and that defendant had
abandoned them and had surrendered the same to the plaintiff.

After the plaintiff had proved the making of the lease and an
occupation apd payment of the stipulated rent for two years of
the term by the defendant^ the latter undertook to prove that,
after the execution of the lease and after he went into possession,
he discovered the presence of an open sewer under the leased
premises, which was filled with filth and dirt from the plaintiff's
hotel, of which his premises were a portion; that the sewer was in-
sufficient in size to carry away the deposit from the hotel closets;
that the hotel sewer, instead of being connected with this
open sewer, simply dropped its contents into it; that the
plaintiff continued to use her sewer in thi^ way during the time
of his occupation, and no change was made in its construction;
that he, from time to time, cleaned out the sewer under his prem-
ises, but it was immediately refilled by the use made by plaintiff,
of her adjacent premises; that from this open sewer came a
stench, which was a nuisance and disagreeable, and which ren-
dered the occupancy of the premises by the defendant dangerous
to life. Evidence of these facts was excluded by the trial court,
upon the plaintiff's objection; as was, also, evidence to show vari-
ous other facts, namely, that the plaintiff represented to the de-
fendant, before he took possession, that there was no cellar under-
neath the leased premises; that there was no opportunity for the
ezaminati'on of the premises before the execution of the lease,
and that the defendant had no knowledge of their condition
before, or at the time, when he entered into possession. There

Digitized by


Oct. 18^5.] Sully y. Schmitt. 661

was conflicting eyidence upon the subject of whether the plain-
tiff had accepted a surrender of the leased premises from the de-
fendant^ and the defendant asked to go to the jury upon the
proposition that there had been such a surrender and an ac-
ceptance; but the request was denied and the defendant excepted.
A verdict was directed for the plaintiff.

252 'pjjQ \q2&q was for a term of three years, and described a
front room on the ground floor of the Fillmore House, in the city
of Buffalo, which had formerly been the diningroom of that
hotel It contained, among other provisions unimportant to be
mentioned, the agreements of the lessee to keep the premises in
good repair; to prevent them from being injured by flre or other-
wise, and to keep ^^the premises hereby leased • ... in a cleanly
and heaJtliful condition." It was shown that the premises were
leased for a barroom. They consisted of one room, with no win-
dows or openings, except a door opening upon the street. The
floor covered the entire room, with no aperture, or access, to a
cellar beneath. Some four months after the defendant took pos^
session, he was allowed to make use of the space underneath the
floor, for the purpose of storing liquors and jugs, and then first
became acquainted with its nature and condition.

The case presented seems to be one as to which there should be
no doubt with respect to the propriety of permitting the de-
fendant to prove the facts set up in his defense and contained
in his offer of proof. If the evidence, which he was not allowed
to give, should establish the existence of such a state of things as
was set forth in the answer and the offer, and the abortiveness
of his efforts to remedy it, through the continuance of acts by his
landlord which rendered it possible, there was an eviction at law,
which warranted the abandonment of the premises and exon-
erated the tenant from the payment of rent thereafter. There
was neither any express nor any implied warranty that the prem-
ises wore fit for habitat ion when leased, or for any purpose for
which leased; but the landlord could not be instrumental in
rendering them uninhabitable and hold his tenant to his agree-
ment to pay rent. If they became untenantable through her de-
fjinlt and wron^Erful acts, then she did that which obstruclcd
their beneficial enjoyment and justified the tenant in abandoning
tliem. It is a long established and perfectly familiar rule that a
physical eviction is not necessary to exonerate the tenant from
the payment of rent. The landlord's acts, though not amount-
ing **^^ to a physical expulsion, may, nevertheless, be of so pro-
nounced and offensive a character as to create a nuisance; which.

Digitized by


662 Sully v. Bchmitt. [Now York,

by preyentlng the reasonable nse by the tenant of the premises,
would affect directly the consideration of the contract between
them: Dyett v. Pendleton, 8 Cow. 727; Edgerton v. Page, 20 N.
Y. 281; Boreel v. Lawton, 90 K Y. 293; 43 Am. Rep. 170. Ap-
plying the rule to the present case, if the plaintiff's evidence had
been received it would have shown, or tended to show, that when
he discovered the state of things underneath his room and en-
deavored to remedy it by cleaning out the sewer, the landlord not
only made no change in its construction, but continued to main-
tain it in a disagreeable and possibly dangerous, certainly of-
fensive, condition, by suffering the contents of her hotel sewer to
flow into and refill the open sewer as often as the tenant would
clean it. The neglect of the landlord would seem to be mon-
strous and to amount to the creation and continuance of a
nuisance upon the adjacent premises. Certainly it would be for
the jury to say whether the evidence made out such a state of
facts as exhibited the landlord in the attitude of continuing in
the performance of acts which amounted to the maintenance of
a nuisance, and through which her tenant's premises were ren-
dered unfit for reasonable use and occupation.

The tenant's covenants in the lease obligated him with respect
to the maintenance of his own premises in good repair and in a
cleanly condition; but the nuisance from the stench arose upon
the landlord.'s property and because of her repeated neglect.
The tenant's covenants did not bear upon such a condition of
things, and went no further than to oblige him to do what lay in
his power towards keeping his premises in good repair and in a
cleanly state.

The verdict would turn upon the question whether the de-
fendant had neglected anything which he was able and might
reasonably be required to do under his lease, and, if he was not at
fault, whether the premises, through the wrongful acts of the
landlord, were rendered unfit for occupation; in consequence of
which the tenant was justified in abandoning, **^ and did in
fact abandon, their possession. It was not necessary that the
defendant should have been induced to enter into the lease by the
misrepresentation or fraud of the plaintiff. If he was able to
show that, during his occupation, his landlord was guilty of
affirinative acts which caused a nuisance, of a nature dangerous
to life or health and against which the tenant was remediless by
the performance of any acts called for by his own covenants, the
evidence should have been received.

It is argued for the respondent that she has a right, in the

Digitized by


Oct. 1896.] Sully v. Schmitt. 663

nature of an easement^ to continue the iise of the sewer. While
that is true as a general proposition^ as applied to the facts of this
case, it fails as a defense, if the use made of it amounted to an
abuse of the right and so injuriously affected the tenant's posses-
don as to make it impossible^ or unsafe, for the latter to continue
in occupation. The point is, not that the landlord did not have
the right to make use of this sewer for his house; but that by its
defective construction it became a source of offense and possible
danger, and the efforts which the tenant made to keep it in clean
and reasonably fit condition were nullified by the refusal of the
landlord to remedy the defects in construction; the result
whereof was that the stench and offense were constantly renewed
by the refilling of the sewer with the filth and waste from the

Upon the question, also, of whether the plaintiff had accepted
the defendant's surrender of possession, there was evidence given
by the latter which, if believed by the jury, would have supported
a verdict to that effect.

For the errors adverted to there should be a reversal of the
judgment below and a new trial ordered with costs to abide the

All concur.
Judgment reversed.

LEASED PREMISES.— An actual expnleion from the property is not
essential to an eviction to the extent of sustaining the right of the
tenant to refuse the payment of rent. It may consist of any interference
with the tenant's beneficial enjoyment of the demised premises: Edmi-
8on V. Lowry, 3 8. Dak. 77 ; 44 Am. St. Rep. 774, and note showing that
acts of a grave and permanent character, which amonnt to a clear indi-
eation of intention on the landlord's part to deprive the tenant of the
enjoyment of the demised premises, amount to an eviction. The tenant
is justified in abandoning the demised premines whenever the landlord
does any act amounting to an eviction, at the election of the lessee.
And such an act, accompanied by an abandonment of possession by the
lessee, is deemed a virtual expulsion of the tenant, and, equally with
an actual expulsion, bars the recovery of rent. The maintenance of a
nuisance on the demised premises by the landlord is such an act: See
monographic note to Minneapolis Co-operative Co. v. Williamson, 38
Am. St. Rep. 485, 490, on what justifies the tenant in abandoning leased
premises. If there is a distinct understanding that a demised house ii
in ffood condition, a tenant will he justified in abandoning it on account
of defects in the sewerage, which he did not discover at first, and after-
ward endeavored without success to remedy: Note to Minneapolis Co-
operative Co. V, Williamson, 38 Am. St. Rep. 481. While the landlord
Is not, in the absence of an express stipulation, or some statutory pro-
vision, bound to see that the demised premise's are suitable for the pur-
pose for which they are hired, or to make repairs (Blake v. Dick, 15
Mont. 236: 48 Am. St. Rep. 671. and note>, he cannot, by any positive
act or neglect of duty, substantially defeat the tenant's enjoyment of

Digitized by


664 Bookman v. New York Elevated B. R. Go. [New York,

the premises, and at the same time hoi J him to his contract. A fail-
ure to perform a duty which the landlord owes to the tenant, and with*
oat the dne performance of which the leasehold premises are not tenant-
ahle, is an eviction : I^ote to Minneapolis Co-operative Co. v. Williamson,
38 Am. St. Rep. 488. Some cases hold that the unhealthy condition of
the premises at the time of renting, or arising during occupancy, is a
constructive eviction, and is ground to be released from the payment of
rent, and that the landlord must keep the premises in a healthy condi-
tion ; but other cases assert the contrary : See monographic notes to
Gilbert v. Hoffman, 55 Am. Bep. 265 ; Bowe v. Hunking, 46 Am. Bep.

Bookman v. Nbw York Elevated R R Ga

[147 Nkw Tobk, 298.]

railroads-elevated, when DAMAGES ARE PROP-
ERLY DENIED.— If an elevated street railroad enters a vacant and
uninhabited locality which normal city growth has not effectively
reached, which improvement has not seriously touched, which re-
mains to be developed, and which has no element of growing value
except such as lies in hope and expectation* and thereupon and
thereby population and growth, tending elsewhere, are diverted to the ^
new line, of rapid transit, creating a steady increase of values, both
directly on the line, and in the side streets near by, the only reason-
able and sensible inference is that the increased values are the sole
and substantial product of the newly opened line, and courts, under
such circumstances, are justified in refusing to award damages to an
abutting property owner, for there is no injury, and none can be

If an elevated street railway enters an area already substantially
built up and improved, where normal city growth has come, and there
has been an increase of values with which the rapid transit line ha»
had nothing whatever to do, the average rate of the observed in-
croaso in such locality ccn be approximately ascertained, and if the
rate continues, after the construction of the road, in the side streets,
but P> less rate of increase is found on the avenue occupied by the cars,
and facts are shown explaining such loss by evil effects of the new
line, it Is possible to infer that the avenue property has not shared as
It should in the normal and independent Increase of value to the ex-
tent to which it was entitled.

action by an abutting property owner against an elevated street rail-
way for damages caused by the construction of its road, no damages
should be awarded, and the complaint should be dismissed, if the
proof shows that that particular locality before the coming of the
rond was substantially or mainly vacant, and that after the road came
the building and Impi-ovement swiftly followed, accompanied by
steady and serious Increases of value, although the side streets in-
creased in value more rapidly than the avenue occupied by the road.
But if the proof shows that the road has occupied a locality already
substantially built up, in which a normal city growth is operating and
seriously Increasing values, but as a consequence of the road the.
natural advance has halted or palpably lessened* while in the adja*

Digitized by


Oct. 1895.] Bookman v. Nbw Yore Elevated B. S. Ca 666

cent side streets it continues, there is possibly an inference of taet
tbat the abutter has been injured.

^FAILURE OF PROOF.— In an action by an abutting property-
owner against a street railway company, to restrain the operation
and maintenance of its elevated road, and for damages caused
thereby, a Judgment for the plaintiff should be reversed, if the finding
of the trial court that plaintiff's property was injured by the railroad
ovor and above all benefits conferred is wholly unsupported by proof
and contradicted by specific fludiugs that the locality was previously
subfiluntially vacant and unimproved, or at the most only partially
built up, Willie soon after the construction of the road it was com-
pactly built up; that both the rental and fee values of the property
had largely increased after the construction of the road; that the
presence of the road with its stations near by had br6tight multitudes
to tbe locality, increased business, and benefited the fee and rental
values, a benefit in which the adjacent side streets had also shared;
that the increased accessibility had induced the settlement and build-
ing; that the same improvement would not have occurred in the ab-
sence of rapid transit; and that the road had been one of the great
and efllcieat factors in building up the locality; as the fact that there
may have been a greater increase of value in the side streets than in
the avenue occupied by the road, due in part, at least, to the influence
of the defendant's road, does not prove or even indicate damage in
such a situation.

Action to restrain the operation and maintenance by the de-
fendants of their elevated railroad in front of the plaintiff's prem-
ises, in Third avenue. New York city, and for the recovery of
damages caused thereby. The plaintiff had eight lots on Third
avenue, and the judgment was in the form usual in this class of
actions. An injimction was granted, and by way of incidental
relief, past damages to rental value in the sum of eight thousand
two hundred dollars were allowed. It was also provided that the
injunction could be avoided on payment of nine thousand eight
hundred dollars, which was found to be the damage to the fee
▼alue, over and above all benefits, by reason of the construction,
maintenance, and operation of the elevated road in front of the
plaintiff's premises.

Arthur 0. Townsend, for the appellanta

E. W. Tyler, for the respondent.

^^* FINCH, J. It is impossible to decide this appeal cor-
rectly without a full and definite appreciation of the difference
between the case of Bohm v. Metropolitan etc. Ey. Co., 129 N. Y.
576, and that of Becker v. Metropolitan etc. Ry. Co., 131 N. Y.
509. Both belonged to the class of actions in which the abutting
property was shown to have seriously increased in value since the
construction of the elevated road, so that, presumably and ap-
parently, benefit instead of damage had resulted; and in each it

Digitized by


666 Bookman v. New Yobk Elevated B. B. Go. [New York|

was, therefore, necessary to show, as ground of recoyeiy, two
things: 1. That when the road was built the locality was increas-
ing in yalne from the tendency toward it of incoming population
and normal city growth; and 2. That in the continuance of that
progressive increase of value the plaintiff^s property would have
shared if the railroad had not been built, but was prevented
from so sharing to its due extent by the presence of the road,
^^^ operating more or less as a barrier to a normal advance. In
the earher case we held that there was no evidence of either
essential fact, and reversed an award of damages; in the latter
case we decided that there was some evidence of the necessary
facts, and so a reversal was not possible, however just such a
reversal might have been. Since the evidence in the two cases
was very much alike, the real difference in its effect was neces-
sarily due to the wide difference of situation and surroundings
existing when the new structure was built, and some considera-
tion of that difference, and of its results, may prudently precede a
reference to the facts now before us.

Where an elevated street railroad enters a vacant and unin-
habited locality, which normal growth has not effectively
reached, which improvement has not seriously touched, which
remains to be developed, and which has no element of growing
value, except such as lies in hope and expectation, and thereupon
and thereby population and growth, tending elsewhere, are di-
verted to the new line of rapid transit, and build up the vacant
locality, creating a demand for lots and a steady and persistent
increase of values both directly on the line and in the side streets
near by, the only reasonable and sensible inference is that the in-
creased values are the sole and substantial product of the newly
opened lihe which has brought prosperity to a neglected locality.
So far as normal growth or incoming population has had any-
thing to do with the increase of value they are themselves as
operating causes due to the new mode of access, and in no respect
separate from or independent of it. In and of themselves they
would have done the locality no good; would have spent their
force elsewhere; would have built up homes even in other states
whence steam would give rapid and easy passage, and left the
locality to its normal solitude. Of course, in such a case, it is
little short of an absurdity to say that the coming of the road pre-
vented the abutter from having his share of the normal city
growth, since it is the coming of the road that enables him to par-
ticipate in that growth at all; that brinsrs it to his vacant and un-
marketable lots; that sets it in operation as a cause of •^ in-

Digitized by


Oct 1895.] Bookman v. New Yokk Elevated R. R. Co. 667

creasing values. It is the obYious truth of such a situation that
the removal of the road to some other locaUty would at once
diminish the value of the abutting property by taking away the
adequate cause of its advancement^ and diverting the growth
which had begun to the new line adopted. It is further true of
such a case that no ingenuity and no proof can separate what is
called the normal city growth as a cause of increasing value from
the chief and principal cause, which is the rapid transit system.
The two are not only interwoven and inextricably mingled, but
the former has no existence in the supposed locahty separate
from and independent of the latter. It follows that in the sup-
posed situation neither proposition essential to a recovery is or
can be proved, for it is not true that the local values were seri-
ously increasing when the road was built, nor that the increase,
when it came, was due to any cause independent of the stimulat-
ing effect of the road. Such was Bohm v. Metropolitan etc. Ry.
Co., 129 N. Y. 576, and we were justified in refusing an award of
damages, in disregarding the guess of experts, and in denying any
force to a greater increase in the side streets.

But the situation changes materially when the elevated road
enters an area already substantially built up and improved. In
«nch a locality normal growth has come^ and built the blocks up
Aolidly, or nearly so, and caused an increment of value due to
itself alone, and with which the rapid transit line had nothing
whatever to do. Such normal growth it is evident had its own
independent existence and operation, because it had already
worked, and was continuing to work, its result of an increase of
values when the railroad did not exist. The average rate of that
observed increase in such locality can be approximately ascer-
tained, and if the rate continued after the construction of the
elevated road in the side streets, but a less rate of increase is
found on the avenue occupied by the cars, and facts are shown
explaining such loss by evil effects of the new line, it is possible
to infer that the avenue property has not shared as it should in
the normal and independent increase of value to the extent to
which it was entitled. That I understand to be the substantial
basis of Becker v. Metropolitan etc. Ry. Co., 131 N". Y. 609. The
distinction ^^^ I have sketched was plainly drawn in the opinion.
It was there said: "That although certain of the pide streets were

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