#### Mary A. Ollwerter, Respondent, *v.*Franklin Escher, Appellant.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Landlord and tenant — apartment house heat — constructive eviction by failure to furnish — lease — appeal.

It is the duty of a landlord of an apartment house to maintain therein proper heating and hot water appliances.

A landlord’s obligation under the lease to furnish heat cannot be avoided by proof that the steam heating apparatus was worthless, and that he made ineffectual efforts to render it fit for service.

Where, in an action to recover rent for an apartment in the city of New York from March 1, 1912, until the termination of the lease on the first of May following, and also unpaid rent for February, the weight of evidence is in favor of defendant’s contention that the premises were practically uninhabitable because of their unheated condition during the greater part of the months of January and February and when defendant' vacated the apartment on the last day of said February, there is a constructive eviction of defendant; and a judgment in plaintiff’s favor will be reversed and the complaint dismissed.

Appeal by the defendant from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, seventh district, rendered in favor of the plaintiff.

Henry Escher, Jr. (John B. Gleason, of counsel), for appellant.

Samuel Blumberg (Harry Kutscher, of counsel), for respondent.

Guy, J.

Plaintiff is the owner of a lease made October 1, 3911, by the United States Lease Holding Company to the defendant, of a housekeeping apartment in Mew York city, .for the term of one year at the rental of sixty-five dollars per month.

This action involves the right of the landlord to recover *155rent from March 1, 1912, until the termination of the lease, May 1, 1912, for which, together with twenty-nine dollars unpaid rent in February, judgment herein has been rendered.

Defendant testified that during the month of January the premises became uninhabitable by reason of insufficient heat, so that he was obliged to move away from the apartment with his wife and infant child; but that, relying upon the landlord’s promise to repair, he again returned to the apartment, but during the entire month of February, except on one or two occasions, there was inadequate heat and the premises became so cold that on February 29, 1912, he was again compelled to vacate.

The answer further sets up a counterclaim for $500 damages for expenses necessarily incurred and injury to defendant’s health by reason of said eviction.

The lease provides as follows: “ The landlord agrees that without additional charge proper heating and hot water appliances shall be maintained in this building of a size sufficient to supply a proper amount of heat and water to all the tenants at all proper times,” and that, in case of the heating apparatus requiring repair or improvement, the landlord may omit such service until all necessary repairs have been made or completed, without in any manner or respect affecting or modifying the obligations or covenants of the tenant, and in such case the landlord shall use due expedition and diligence to repair, improve or reconstruct the same.

Defendant produced several witnesses, including the janitor of the premises at the time in question, who testified as to the unheated condition of the building.

Plaintiff, in rebuttal, called several witnesses, who testified to constant efforts at repair on the part of the landlord during the months of January and February. It is clear from the evidence of these witnesses that the efforts at repair made by the landlord were not effective in restoring the premises to a properly heated condition. The weight of evidence is conclusively on this point in favor of defendant’s contention that the premises were practically uninhabitable because of their unheated condition during the greater part of the *156months of January and February and at the time the defendant vacated the apartment. This amounted to a constructive eviction of the defendant.

It was the duty of the landlord to maintain proper heating and hot water appliances. The only conclusion that can properly be drawn from the evidence is that the steam heating apparatus or plant was utterly inadequate, notwithstanding constant efforts at repair, to supply the heat which the landlord had covenanted to furnish. The apparatus being, according to the evidence, inadequate, though subjected to constant repair, to the furnishing of the quantity of heat which the landlord agreed to furnish, it was his duty to reconstruct the same or introduce a new steam heating plant. He cannot avoid the obligation assumed by him under the lease by proving that the apparatus was worthless and that he made ineffectual efforts to render it fit for the service.

The judgment must, therefore, be reversed, with costs, and the complaint dismissed, with costs.

Seabtjby and Bijur, JJ., concur.-

Judgment reversed, with costs, and complaint dismissed, with costs.