4. LANDLORD AND TENANT (§ 233*)—ACTIONS FOR RENT QUESTIONS FOR JURY. Whether there had been a surrender of possession by the tenant, and acceptance by the landlord, so as to relieve the tenant from the rent sued for, held for the jury.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 941, 942; Dec. Dig. § 233.*]

5. FRAUDS, STATUTE OF (§ 63*)—Surrender of LEASE-NECESSITY OF WRITING. Real Property Law (Laws 1896, p. 592, c. 547) § 207, requiring a surrender of a lease for more than one year to be in writing and signed by the tenant, does not apply where there is an actual surrender and acceptance.

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. § 98; Dec. Dig. § 63.*]

--

6. LANDLORD AND TENANT (§ 168*) — BREACH OF COVENANT TO REPAIR - TENANTS AT FAULT.

A breach of a covenant by a landlord to make inside repairs, including plumbing, does not entitle the tenants to recover for damage to their goods from a frozen water pipe bursting, where they are at fault.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 661, 662; Dec. Dig. § 168.*]

Appeal from Municipal Court of New York.

Action for rent by John O. Baldwin against Abraham Cohen and another. Judgment for plaintiff on a directed verdict, and defendants appeal. Reversed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Morris S. Hirschberg, for appellants.

Lewis C. Grover (Theo. Burgmyer, on the brief), for respondent.

GAYNOR, J. The learned counsel for the defendants claims that there was evidence of a "constructive eviction" which should have been submitted to the jury. He bases this on section 197 of the real property law (Laws 1896, p. 589, c. 547). But that provision has nothing to do with the law of eviction. It only changes a hard rule of the common law by giving a tenant the right or option to "quit and surrender possession of the leasehold premises," and thereby release himself for rent accruing after such surrender, where the "building which is leased or occupied is destroyed or so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy," etc. In place of enlarging the law of eviction it does not provide for an eviction, but only confers an option to quit and surrender on such injury or destruction of the building. Instead of being evicted, the tenant still has possession of the leased property, and it may be to his profit to continue to hold it. Now all that happened here was that a water pipe in the leased premises burst from freezing, and the landlord refused to repair it, although there was a provision in the lease that the landlord should do the inside repairs, "including the plumbing." The said statute does not cover such a case, nor does the law of eviction; nor was the keeping of the covenant to repair a condition to the covenant to pay rent. Huber v. Ryan, 26 Misc. Rep. 428, 56 N. Y. Supp. 135.

But the defense of surrender and acceptance should have been sub

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

mitted to the jury. When the defendant asked the plaintiff to repair the pipe he refused and told the plaintiff if he was not satisfied with that to move out, and the plaintiff told him he would move out, and he began to move out in about two weeks. While the moving was going on, the plaintiff came on the premises and told the defendant's representative to clean up the place and send him the keys when the moving was over. This is according to the evidence for the defendant. The keys were delivered to the plaintiff and he made no objection. Section 207 of the real property law, which requires a surrender of a lease for a term of more than one year to be in writing and signed by the tenant does not apply. If there be an actual surrender and acceptance that suffices. Kelly v. Noxon, 64 Hun, 281, 18 N. Y. Supp. 909; Chaplin on Landlord and Ten. c. 29. X

The defendants were not entitled to counterclaim the damage to their goods. Reiner v. Jones, 38 App. Div. 441, 56 N. Y. Supp. 423; Weinberg v. Ely, 114 App. Div. 857, 100 N. Y. Supp. 283.

The judgment should be reversed.

Judgment and order of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

MARTENS et al. v. SLOANE.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.) 1. LANDLORD AND TENANT (§ 173*) - CONSTRUCTIVE EVICTION - ODORS FROM COOKING FOOD.

The cooking of food in the basement of a building by a tenant in the conduct of a restaurant, in consequence of which odors find their way into the apartments of another tenant, is not a constructive eviction, relieving him from payment of rent, where the alleged nuisance is confined wholly to acts of the tenant using instrumentalities owned by himself, with which the landlord has nothing to do; and this, though the portion of the building used as a restaurant was occupied as a residence when the other tenant leased.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 705; Dec. Dig. § 173.*]

2. LANDLORD AND TENANT (§ 172*) - CONSTRUCTIVE EVICTION INSUFFICIENT НЕАТ.

Where the landlord did not covenant to furnish heat, and there is no proof that the apartments occupied were arranged so that they could be heated from a furnace by the landlord, proof that there were radiators of imperfect design and construction in the apartments, that the apartments were cold, and that the tenant complained thereof, has the effect only of showing that for some unexplained reason the temperature was not maintained, so as to make the apartments comfortable, and does not establish a constructive eviction, relieving the tenant from the payment of rent. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 695-703; Dec. Dig. § 172.*]

Appeal from Municipal Court, Borough of Brooklyn, Sixth District.

Action by Abraham Martens and another against Ralph D. Sloane. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Milton J. Gordon (Nathan Kalvin, on the brief), for appellant. Stephen W. Collins (Frederick Willets, on the brief), for respond

ents.

RICH, J. This action was brought to recover rent. The defendant claimed constructive eviction, because of a failure to properly heat the demised premises, and because of a nuisance created by another tenant, by whom a portion of the building. which was occupied as a residence when defendant leased, was subsequently used as a restaurant. The lease, which is in writing, limits the use of the premises occupied by defendant to that of a private dwelling apartment for his family. There is no covenant of the landlords for quiet enjoyment, heat, repairs, or keeping the premises in such condition that they might be comfortably and without annoyance used by the lessee as a dwelling.

The nuisance complained of was not the result of acts of the landlords, unless it can be held that the giving of the later lease charged them with responsibility for the acts of the lessee. I do not think it had that effect. The cooking of food in the basement of the building, in consequence of which odors found their way into the apartments occupied by defendant, were not acts of the plaintiffs, and did not arise from instrumentalities in their possession or operated by them. In that respect the case presented differs from the authorities cited, which involve gas and odors from a furnace in the basement of an apartment building, owned and operated by the landlord for the benefit of all of his tenants (Tallman v. Murphy, 120 N. Y. 345, 24 N. E. 716), the entry of water through the cellar and foundation walls, causing dampness and malaria (Meserole v. Hoyt, 161 N. Y. 59, 55 N. E. 274), odors arising from a sewer under the demised premises, provided by the landlord for the use of himself and other tenants in the building and used by them (Sully v. Schmitt, 147 N. Y. 248, 41 N. E. 514, 49 Am. St. Rep. 659); and similar cases, in which it was held that such acts constituted constructive eviction. These cases rest upon the affirmative acts of the landlord, resulting in a nuisance, due in some measure to him, and are not controlling in a case where the alleged nuisance is confined wholly to acts of a tenant of another portion of the building, using instrumentalities owned and operated by himself, which the landlord does not control and with which he has nothing to do. McKinny v. Browning, 126 App. Div. 370, 110 N. Y. Supp.

562.

The plaintiffs did not covenant in the lease to furnish heat for the demised premises, and there is no proof that the rooms occupied by the defendant were arranged so that they could be heated from a furnace, or other apparatus, by plaintiffs. The proof is limited to testimony that there were radiators of imperfect design and construction in such apartments, that the rooms were cold in the winter season, and that the defendant and his wife complained to the plaintiffs and their agent that they did not get sufficient heat. This might all have

116 N.Y.S.-33

been the result of the defective radiators, and the evidence has the effect only of showing that from some unexplained reason the temperature of the demised premises was not maintained, so as to make them comfortable as a residence for defendant's family during the winter months.

The evidence does not establish a constructive eviction, and the judgment of the Municipal Court must be affirmed, with costs. All

concur.

COFFEY v. BURKE et al.

(Supreme Court, Appellate Division, Second Department. April 30, 1909.) 1. CONTRACTS (§ 123*)-VALIDITY-PUBLIC POLICY.

A contract by which an employé of a city agrees for a consideration to furnish information to be used against the city in a lawsuit, such information having been acquired by him as an official of a municipality which thereafter and before his contract was merged in the city, is immoral, so that he cannot recover thereon, though the information was in the public records; it requiring some one like him, who had personal knowledge of the matter, to point it out.

[Ed. Note. For other cases, see Contracts, Dec. Dig. § 123.*]

2. CONTRACTS (§ 140*)-VALIDITY.

A new promise founded on an illegal contract is tainted by the same illegality.

[Ed. Note. For other cases, see Contracts, Dec. Dig. § 140.*]

3. CONTRACTS (§ 138*)-ILLEGAL CONTRACTS-ENFORCEMENT.

That defendant has the fruits of the immoral contract of plaintiff to furnish information to be used in a suit against his employer, a city, in the service of which he acquired the information, is no reason for allow ing recovery of the price to be paid therefor; the law refusing its aid to maintain its own purity and for the sake of morality, not on account of defendant.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.*]

4. TRIAL (8 177*)-DIRECTION OF VERDICT.

There being evidence in support of defendant's counterclaim sufficient to go to the jury, and both parties moving for a direction, it could direct for defendant.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 400; Dec. Dig. § 177.*]

Appeal from Trial Term, Kings County.

Action by Phillip J. Coffey against Mary C. Burke, executrix of Thomas P. Burke, deceased, and another. From a judgment on a verdict directed for defendants, and from an order denying a motion for new trial, plaintiff appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and JENKS, GAYNOR, RICH, and MILLER, JJ.

James C. Church, for appellant.

A. L. Pincoffs (Edward D. O'Brien, on the brief), for respondents.

MILLER, J. The defendant Burke recovered $78,862.67 in a suit for legal services rendered by her testator, Thomas P. Burke, to the re

lators in certain mandamus proceedings. See Burke v. Baker, 111 App. Div. 422, 97 N. Y. Supp. 768; Id., 188 N. Y. 561, 80 N. E. 1033; People ex rel. Gleason v. Scannell, 172 N. Y. 316, 65 N. E. 165. This suit is brought on a contract whereby the plaintiff undertook to secure the retainers for Burke and to assist in the preparation of the cases, for which Burke was to pay him one-third of the compensation received. While Burke was doubtless forbidden to make such a contract, the plaintiff could still recover upon it so far as the mere procuring of the retainers was concerned. Irwin v. Curie, 171 N. Y. 409, 64 N. E. 161, 58 L. R. A. 830. But the trial court held that the plaintiff's relations to the city and to the matters involved in the mandamus proceedings were such as to render the contract unenforceable.

The clients obtained for Burke by the plaintiff had been appointed firemen by the fire commissioners of Long Island City shortly before consolidation, in apparent violation of the charter of Long Island City, from the fact that the appropriation appeared to be exhausted; wherefore they were removed. They employed counsel who instituted mandamus proceedings, evidently without knowing on what point they could win. Apparently the cases dragged along until the relators became discouraged, when they were persuaded by the plaintiff to retain. Burke, who had been corporation counsel of Long Island City. The plaintiff was secretary to the mayor and clerk to the board of civil service examiners of Long Island City at the time of consolidation, when he was transferred to the position of labor clerk under the civil service commissioners of the city of New York, which position he held at the time the contract in suit was made and still holds. He knew from information gained in the position held by him prior to consolidation that the appropriation for the fire department had been exhausted by illegal payments. He testified:

"I obtained the information relative to the appropriation of $40,000 which appeared to be on the face of it to be overdrawn, but which as a matter of fact was not, from my general knowledge of Long Island City affairs by reason of being secretary to the mayor. I imparted that information to Mr. Burke in 1899, after consolidation. * * I showed how they [referring

to the items of illegal payments] should be obtained. They should consult the minutes of the board of aldermen of Long Island City at that time to see if they passed on all items of over $100 that were paid out. * It was through bringing out those items that the case was won."

It should be said in passing that the point now before us was not raised in Burke v. Baker, supra, and that the recovery in that case was upon a different contract. If all that is shown or suggested by this record had been established in that case, the court might have found a way to prevent a recovery, even if the point had not been raised by counsel. To say the least, the transactions involved in this suit from the beginning have an ill look; but we are dealing now only with the plaintiff's relation to them.

The plaintiff's position is that he merely undertook to render services in a matter unrelated to the duties of the position then held by him; that his information was not confidential, but was contained in public records; that he had ceased to be an employé of Long Island City; that one may use in a lawful employment knowledge gained in a former