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(102 Misc. Rep. 92)

BATTERMAN v. LEVENSON.

(Supreme Court, Appellate Term, Second Department. December Term, 1917.) 1. LANDLORD AND TENANT ~172(1)—BUILDING INFESTED WITH RATS-RIGHT OF ABANDONMENT.

The presence of rats in large numbers in a building rented to several tenants, control of the lower part being retained by the landlord, may constitute such nuisance as to justify a tenant in abandoning the premises, although there is no direct proof that the rats came from or through a part of the building under the landlord's control. 2. LANDLORD AND TENANT

OF ABANDONMENT.

172(1)—BUILDING INFESTED WITH RATS-RIGHT

Where a building was leased to several tenants, and a part thereof remained in the landlord's control, that a tenant had knowledge that the premises were infested with rats before entering into a lease would not relieve the landlord from the duty to exterminate the rats, or affect the tenant's right to claim a constructive eviction.

3. LANDLORD AND TENANT OF ABANDONMENT.

178-BUILDING INFESTED WITH RATS-RIGHT

That the tenant did not abandon the premises more promptly did not estop him from claiming constructive eviction by reason of the presence of rats, where the rats increased in number so as to become intolerable. 4. EVIDENCE 66-BUILDING INFESTED WITH RATS-KNOWLEDGE OF LAND

LORD-PRESUMPTION.

Where the premises had been infested with rats for several years, it must be presumed that the landlord or his agent had knowledge thereof.

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

Action by Henry L. Batterman against George A. Levenson. Judgment for plaintiff for $170.25 damages and costs, after a trial by the court, and defendant appeals. Reversed, and new trial ordered.

Argued December term, 1917, before CLARK, BENEDICT, and CALLAGHAN, JJ.

Sydney Rosenthal, of Brooklyn, for appellant.

Ben W. Slote, of Brooklyn, for respondent.

BENEDICT, J. This is an action for $150 for three months' rent under a written lease. The answer denied some of the allegations of the complaint, and set up as a separate defense constructive eviction. and surrender. The demised premises consisted of the second floor of the building No. 22 Graham avenue, in the borough of Brooklyn, and were used by defendant for dental parlors. The lease was made in August, 1914, for a term of three years from August 15th of that year. The defendant abandoned the premises in October, 1915, and claims in this action a constructive eviction, by reason of the presence of a large number of rats, which did great damage to his business.

[1] The evidence strongly preponderates in favor of defendant's contention that the premises were infested with rats. The only witness produced by plaintiff to show the contrary was plaintiff's agent, who visited the premises from time to time, remaining not to exceed a half hour at any time, and who did not see any rats. The janitor, who

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

might have been produced by plaintiff to contradict the testimony on this point on the part of the defendant, if it were false, was not called. It seems now to be recognized that the presence of rats in great numbers in a building rented to several tenants, the control of the lower part of which is retained by the landlord, may constitute such a nuisance as to justify a tenant in abandoning the demised premises, even without direct proof that the rats came from or through a part of the building under the landlord's control. Barnard Realty Co. v. Bonwit, 155 App. Div. 182, 139 N. Y. Supp. 1050, reversing 76 Misc. Rep. 464, 135 N. Y. Supp. 700. But see Cushman & Co. v. Rohl, 153 N. Y. Supp. 94.

[2] This case presents the further question whether the defendant is in position to insist on this defense: First, because he occupied the building for about two years before he entered into this lease, during all of which time the building was to his knowledge infested with rats; and, secondly, because he waited a year and two months after the beginning of the term before abandoning the premises. With respect to the first objection, defendant testified that plaintiff's agent promised, when the lease was signed, to remedy the condition. The agent did not categorically deny this, but testified that neither the defendant nor any other tenant had ever spoken to him on the subject of rats. In my opinion, under the ruling in the case above cited, the question is unimportant. The duty of the landlord to protect his tenant from annoyance by pests of this nature remained, because the tenant was powerless to protect himself. Had the tenant leased the whole building, the case would have been entirely different. So, also, would it have been, if the pest had been of a nature which the tenant could have coped with, within his own part of the building. Pomeroy v. Tyler, 9 N. Y. St. Rep. 514; Jacobs v. Morand, 59 Misc. Rep. 200, 110 N. Y. Supp. 208. The case of Paterno v. Dunham, 144 N. Y. Supp. 764, is relied on by respondent; but the report does not show what was the nature of the premises involved in that action, whether an apartment or a whole building, nor what was the condition which was claimed to constitute an eviction. I regard it as the law, therefore, that where a building is leased to several tenants, and a part or parts thereof remain in the landlord's control, the fact that a tenant may have known of the presence of vermin in the building before entering into the lease does not relieve the landlord of any duty which would otherwise have rested upon him to exterminate such vermin.

[3] As to the other objection, that the defendant did not abandon the premises more promptly, there was testimony, wholly uncontradicted, that the bad conditions increased in the summer and autumn of 1915, so as to become intolerable. This seems a sufficient answer to such objection. See Marks v. Dellaglio, 56 App. Div. 299, 67 N. Y. Supp. 736; N. Y. State Ins. Co. v. Wolf, 84 Misc. Rep. 66, 145 N. Y. Supp. 945. There are some remarks in the opinion in the first of these cases which might lead to the supposition that the letting was from month to month, but a reference to Marks v. Dellaglio, 27 Misc. Rep. 652, 59 N. Y. Supp. 707, and 28 Misc. Rep. 539, 59 N. Y. Supp. 509, which seem to have involved the same lease, will show that such was

not the case. Of the authorities cited by respondent on this point, the only one which seems at all applicable is Heilbrun v. Aaronson, 116 N. Y. Supp. 1096, and there the element of the increase of the nuisance does not appear to have been present.

[4] There was a conflict of testimony as to whether the plaintiff's agent was informed by defendant and other tenants of the presence of the rats, but there was testimony that the janitor knew of it, and he was not called to contradict that. Furthermore, the condition had existed for such a length of time that it must be presumed that the landlord or his agent had knowledge of it. If we accept the practically uncontradicted testimony of defendant and his witnesses as to the presence of rats, the testimony of the agent, tending to show that he did not know of that condition, is hardly credible. Defendant testified that he repeatedly complained of the matter to plaintiff's agent.

I advise that the judgment be reversed, with costs to abide the event and a new trial ordered.

CLARK and CALLAGHAN, JJ., concur.

(101 Misc. Rep. 474)

DECKER et al. v. HOAG et al.

(Supreme Court, Special Term, Kings County. November, 1917.)

1. WILLS 849 RESTRICTIONS ON TESTAMENTARY POWER.

Testator, residing in New Jersey and possessed of real and personal property in New York, and New Jersey, with slight exceptions, devised his property to executors in trust to pay income to a New Jersey religious association for certain purposes, and it was determined by the Court of Appeals that such devise was within Decedent Estate Law (Consol. Laws, c. 13) § 17, forbidding a person having a husband, wife, child, or parent from giving more than one-half of his estate for such purposes, though under the New Jersey law there was no such limitation, and that the whole estate was to be considered in determining how much realty in New York the testator might so devise, and that if the corporation was entitled to receive personalty and realty in New Jersey exceeding the value of the realty in New York, the real property in New York passed to his heirs. Held, that the realty in New York descended to his heirs, who were entitled to bring an action for its partition.

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Where a testator made several bequests, including money legacies, and provided that, if there was not sufficient to pay them in full, they should share pro rata, and thereafter inherited realty from a deceased brother and executed a codicil, ratifying the will, and charging the legacies upon his estate, the will and codicil together evidenced an intention to dispose of the entire residuary estate, including such realty.

3. WILLS 199 CODICIL-EFFECT.

In such case the codicil effected a republication of the will as of the date of the codicil.

Action for partition by Silas Decker and another against Walter D. Hoag and others. Interlocutory judgment for plaintiffs.

See, also, 170 App. Div. 234, 156 N. Y. Supp. 442.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Merle I. St. John, of New York City, for plaintiffs.

William D. McNulty, of New York City, for defendants Hoag and George C. Vreeland.

George R. Brennan, of Brooklyn, for defendant Jacob R. Decker, and guardian ad litem for infant defendants.

Griggs, Baldwin & Baldwin, of New York City (Martin Conboy, of New York City, of counsel), for defendant Frederick N. Vreeland and others.

Edmund A. Statler, for defendant North New Jersey Baptist Ass'n.

BENEDICT, J. [1] This is an action for the partition of real property. The complaint was dismissed on the first trial, but on appeal to the Court of Appeals from a judgment of the Appellate Division, affirming the dismissal, the judgment was reversed, and a new trial ordered. The real property in question was part of the estate of Conrad Vreeland, deceased, who died a resident of New Jersey, possessed of personal property and seised of real property in New York and New Jersey. He left a will by which, with slight exceptions, he gave all his property to his executors in trust to receive the income and pay it over to the North New Jersey Baptist Association for certain purposes. It was held by the Court of Appeals in substance that this disposition was within section 17 of the Decedent Estate Law forbidding a person having a husband, wife, child, or parent from giving more than onehalf of his or her estate to charitable, religious, or educational institutions; that the whole estate wherever situated must be taken into account in determining how much of the real property in New York the testator was authorized to give to the North New Jersey Baptist Association; and that if, under the law of New Jersey, the association was entitled to receive the personal property and the real property situated in that state, which exceeded in value the real property in New York, then the New York property passed to the heirs. There was uncontradicted testimony at the trial that under the law of New Jersey there was no limitation upon the right of the association to take the New Jersey real property and personal property. It follows, therefore, that the real property in New York descends to the heirs, and that this action is therefore properly brought. Counsel for the executors of the will of Conrad Vreeland has submitted no brief, and so I do not know whether he desires to contest this point. But under the decision of the Court of Appeals there appears to be no escape from the conclusion reached. The fact that no income had actually been paid to the association is unimportant. The New Jersey real property alone exceeded in value the New York real property.

[2] The next question which requires consideration is as to the construction of the will of Thomas B. Vreeland. He was a brother of Conrad Vreeland and was living at the latter's decease, but has since died. Prior to the death of Conrad, Thomas made a will in which, in substance, he provided as follows: After giving direction as to his funeral expenses, debts, and burial plot, he directed that his friend Russell B. Zabriskie select himself a home, not to exceed $3,500 in cost, and that his executor see that Russell B. Zabriskie be

granted a "warranteed" deed thereof and that "the said home be paid for out of the proceeds of my estate." A similar clause for the benefit of Ernest C. Zabriskie follows: Then follow some monetary legacies, among them one of $1,000 to Lydia L. Vreeland, and other provisions not material, and finally this clause:

"Ninth. I direct that if after all my just debts and funeral expenses are paid it is found that there is not a sufficient amount remaining to pay in full the sums to the persons herein mentioned, then said persons are to receive the sums in proportion to the amounts set opposite their names, and providing there is a remainder after all just debts and persons have been fully satisfied, as heretofore named, then said remainder is to be divided pro rata among Russell B. Zabriskie, Ernest C. Zabriskie, and Lydia L. Vreeland."

Frederick N. Vreeland is appointed sole executor. About ten months after Conrad's death Thomas executed a codicil to his will, "which will," he says in the preamble:

“I do ratify and confirm, and the purpose of this codicil is to more plainly explain the third and fourth clauses of my said will. In the two clauses aforesaid I have empowered my executor therein named to pay to Russell and Ernest Zabriskie the sum of $3,500 each for the purchase of a home. I do ratify and confirm the same and make these payments a charge upon my estate and do authorize and direct my executor therein named to pay out the sum so mentioned."

The contest over the construction of this will and codicil arises be-. tween the heirs of Thomas B. Vreeland, among whom is the plaintiff, and the persons named in the ninth clause of his will, above quoted, who claim to be residuary legatees and devisees. It is urged on behalf of the former that the will and codicil of Thomas V. Vreeland disposed only of his personal property, and did not operate to devise his interest in the real property of his brother Conrad which was not validly disposed of by the latter's will. The defendants Zabriskie and Lydia L. Vreeland claim that the will disposed of Thomas Vreeland's entire estate, real and personal, and that they are therefore entitled to his share in the property in question. The heirs rely mainly on the proposition that a devise of real property, particularly after-acquired real property, will not be raised by implication to the disherison of the heir. Jackson v. Burr, 9 Johns. 104; Havens v. Havens, 1 Sandf. Ch. 324; Lynes v. Townsend, 33 N. Y. 558; Quinn v. Hardenbrook, 54 N. Y. 83; Brown v. Quintard, 177 N. Y. 75, 69 N. E. 225. See, also, Kerr v. Dougherty, 79 N. Y. 327, 345-347; Dreyer v. Reisman, 202 N. Y. 476, 96 N. E. 90, 36 L. R. A. (N. S.) 618.

The residuary legatees rely mainly on the presumption that a testator is to be deemed to have intended, in the absence of controlling expressions to the contrary, to dispose of his entire estate, and the rule that a residuary clause is to be construed, if possible, to cover the entire estate of the testator, real and personal, not otherwise disposed of. Floyd v. Carow, 88 N. Y. 560; Lamb v. Lamb, 131 N. Y. 227, 30 N. E. 133; Carter v. Board of Education, 144 N. Y. 621, 39 N. E. 628; Morton v. Woodbury, 153 N. Y. 243, 47 N. E. 283. As I read the will of Thomas B. Vreeland, it seems evident to me that he intended to dispose of his entire estate. I assume that at the time he made his will he had no

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