Alterowitz v. Levy

It was error to direct a verdict for the landlords in these actions. The tenants did not as a matter of law acquiesce in the conduct of the plaintiffs which was daily resulting in an actual partial eviction. Consequently the tenants (although they cannot claim damages for injury to their business while remaining in possession) were entitled to occupy the premises for the first twenty days of February rent free. The court was further in error in refusing to admit the testimony of the previous landlord which might have shown that the terms of the assignment of the lease and of the transfer of the property to the present landlords *468included the assumption of liability for the security deposited with the former landlord under the lease for the benefit of these tenants. If the jury should be satisfied that this security was in fact so transferred, the tenants would clearly be entitled to the recovery of the security on their counterclaim.

Final order and judgment reversed and a new trial ordered, with thirty dollars costs to appellants to abide the event.

All concur; present, Bijur, O’Malley and Levy, JJ.