The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-09-25

Thomas r Gunn;np VS. John furdel.-As we promised
day two since, publish the charge OF Judge
sHEsMAN to the jury in this case which as IN
This action gentlemen, which has taken up much
of your time, brought in this court as simple &C
ton of debt for the recovery of months rent ninety
dollars due for the month OF August now last past
to Burdel the defendant for year the dwelling house
and furniture No 90 Chambers street, corner oil Broad
way for the rent Of $l25 payable monthly eservng TO
himself several rooms in different parts OF the mousse
Burdell occupied for Office, and the residue
of the premises his wife and family To this claim OF
the plaintiff the defendant pleaded the ISSUE and
gave notice OF conduct by the plaintiff with the wife Of
the defendant amounting as alleged to an ertcon rms
plea of eviction is often nteposed IN sus
bring his suit ia this court as he had right to do and
the defendant has the rights under his plea that he
would have in sny other court Both parties are dentists
and were partners in business, the defendant Burde
having family, and Cunning. the plaintiff is single
| man. . IN
settled and understood in this community consists OF
tive kinds direct eviction, where the landlord ex'
pes the tenant from the premises by force the other
eviction where the landlord does some act
by which the tenant is moesed or disturbed In the quet
enjoy ment OF the premises.
The leading case on this subject which settled the law OF
this State the Pendeton reported in 9Th
Cowsn 727 and decided in the Court OF Errors In IN At
case Pendleon and leased att the second story OF
the dwelling house in Broad street. corner OF Beaver or
the OF s425 year. The rent not being paid Pendie
the landlord, brought an action OF covenant against
ya the tel ant the Supreme Court and Dyatt as IN
this case, pleaded the general issue and an eviction
circumstances
ced lewd women and prostitutes into the lower
rooms OF the house which he occupied, and continu.
ed the practice from time to- time, Keeping company
with them himself; and they with other introduced
for that purpose OF obscene language, ana
improper practices by which means the tenants peace
and quiet enjoy ment disturbed and he compeneto
avoid the same ABANDON and did abandon the premises
The Court decided that although the conduct oil the pai
tiff OF most Objectionable nature, 1t only operated
upon the moral sense and feeling of the defendant and
not his ysical not therefore an eVicuon
That there entry by the landlord INTO and upon
the apartments demsed the deendan and that he had
remedy by resorng TO the police. This decision was
reversed by the Court Of Errors who decided that such
conduct of the landlord was recoya OF eonsuue,,ve
eviction and justified the tenant III leaving the premises
and bar to the recovery OF rent That he LANDLORD
guarantees to his tenant quiet enoym oil the prem
the consideration he entitled to receive Tor the
rent PAYS he deprived OF that consideration
by being molested by the landlord he cannot recover
That the idea that the tenant might nave remedy
in other way does not reach the case where the m
jury has been already inflicted - -,
In the case before us there was an entry INTO the
dwelng part of house occupied by the defendant,
and whether plaintiff entered by permission as boardsr
or nv virtue OF privilege the lease he having reser
we'd a room on the same floor and the room OF de
PENDANT and wife, not materials he abused that privi-
lege he became tresspaper abtnito.
settled upon sautary principle Tor the protection Oh
virtue and domestic tranquility, and the punishment OF
man enter into the demsed premises OF his tenant and
against his WILL is guilty OF an improper intimacy win
his wife, alenates her affections from her huspahu ana
dlsturbs his peace and quiet enjoy OF the premises u
il constructive eviction and bar to the recovery Of
rent destroys the consideration for the rent which the
| landlord is bound to give and not molest
The question: then, gentlemen, presented LOT your
consideration and decisiolHas the defendant mace ou
such will amount to constructve eviI ,
There has been no direct evidence OF criminal inter
course between plaintiff and Mrs Burdel nor Is IL ne
cessary constitute an eviction Nor are we yns al
action of Grim con- any further than y becomes necessary
10 nouire into the acts of the plaintiff IN disturbing the
domestic au of defendant and has enjoyment oil the
nremses The counsel both Sides have 20 folly gone
over and repeated the evidence before vou that must
be fresh in your recollection. shall not ereore take
nm your time this late hour, u repeating it. Thirteen
witnesses have examined the part OF the defend
ant who tend to prove generally the following points
viz that on about 18th Of August last some OF the wit
nesses aed to defendant their opinion that hi
would soon lose his wife, and that Cunning, the plaintiff
would her. and related to him acts OF improper in
tmacy stated the trialthat plaintiff com
ing of her bed room, and she out Of his adjoining
work room-ofen alone together in room ct late hour
OF the night when the rest Of the family were in bed
taking suppers by themselves at late hours and he start
ing with surprise and leaving the when interrupt
ed in her company, and near each othershe making w
a bed for him in her bed ROOM when she leI WIN AO'