Chisolm v. Kilbreth

The defense interposed in this action, brought to recover for one month’s rent of demised premises, was a constructive eviction and an abandonment of the premises prior to the month for which the rent sued for became due.

The only question in dispute was whether the giving of singing lessons by the tenant of an apartment adjoining that of the defendant was of such a character as to create a constructive eviction, and thereby justify the tenant in removing from the demised premises and refusing to longer continue payment of rent. Upon the trial there wag testimony given upon both sides as to the extent of the noises complained of; and whether they were of such a character and duration as to constitute an eviction, or whether they were of a kind that did not injuriously affect the enjoyment of the demised premises, became a question of fact to be determined by the trial judge (Hall v. Irvin, 78 App. Div. 107, 79 N. Y. Supp. 614), and, he having found upon that question, his decision cannot be disturbed.

Judgment affirmed, with costs.