Opinion
March, 1934.
Judgment and order of the City Court of Mount Vernon denying defendant's motion to set aside the verdict reversed on the law and the facts and a new trial ordered, costs to appellant to abide the event. The charge of the trial court was inadequate. It left the jury to infer that after the condition first arose the defendant was bound to move out or be regarded as waiving the right to claim a constructive eviction. Defendant, by remaining in the premises and paying rent from month to month, did not, as matter of law, waive his claim of a constructive eviction. The testimony showed a continuance of the conditions from month to month down to the time of defendant's removal from the premises, and the law is settled that thus the basis for a constructive eviction continued and was renewed after each monthly payment of rent. ( Graecen v. Barker, 130 N.Y. Supp. 141, not officially published; Krausi v. Fife, 120 App. Div. 490; Marks v. Dellaglio, 56 id. 299.) In view of the testimony of the plaintiff's president, conceding the complaints and the necessity for repair, and that such repairs were not made on the exterior walls by way of waterproofing until after defendant moved out, we are also of opinion that the verdict was against the weight of the credible evidence. Kapper, Hagarty, Carswell and Scudder, JJ., concur; Lazansky, P.J., concurs on the ground that there was a renewal of the condition at the time of each heavy rain.