landlord may in such case elect which remedy he will pursue, the alternative being his to pursue either.22

The rule above stated,-that where a lease only provides for a "forfeiture," or for or for "damages and forfeiture," in the event of breach of its covenants by the tenant, the landlord is restricted to a right of re-entry by ejectment suit, and cannot declare the lease terminated and proceed against the tenant as a "holdover," by summary proceedings,is a rule generally applicable in the case of leases, irrespective of the nature of the covenant broken by the tenant.23

It may be observed that even if a lease provides that the tenant shall pay all costs incurred or moneys paid out by reason of his failure to perform covenants or agreements therein contained, the landlord may not recover attorney's fees expended in enforcing such covenants.2

24

The general subject of repairs is too large to be treated fully here, nor is its treatment properly within the scope of this book, which has as its subject primarily the "emergency" laws. None of these laws deal with or affect the subject of repairs. Because of certain widespread misconceptions, brief reference to a few principles and to certain recent cases has been made here; for a comprehensive treatment of the subject, text-books and legal digests upon the general subject of landlord and tenant should be consulted. 25

22 Kalvin v. Sturges (App. Div., 1st Dept.), 196 App. Div. 466, 188 N. Y. Supp. 76.

23 Harris v. Goldberg (App. Term, 1st Dept.), 111 Misc. 600, 182 N. Y. Supp. 262; Cochran v. Anderson (App. Term, 1st Dept.), 111 Misc. 632, 182 N. Y. Supp. 265.

24 Cuyler Realty Co. v. Teneo Co. (App. Div., 1st Dept.), 188 N. Y. Supp. 340, reversing 184 N. Y. Supp. 791.

25 Such as McAdam on "Landlord and Tenant," Jones on "Landlord and Tenant," and Tiffany on "Landlord and Tenant,"

SERVICE

By "service" we mean such facilities as the landlord is required to render the tenants by virtue of the terms of the lease or such as are implied by the nature of the premises leased. Heat, hot water supply, telephone and elevator are the items most commonly referred to under this designation "service."

As to such "service," the emergency laws are not silent. Where the lease provides for these facilities, the landlord is, of course, obligated to furnish them.26 Prior to the emergency laws, however, his failure to do so merely subjected the landlord to an action or counterclaim for damages, in which the tenant might recover either the actual damages sustained, if any could be proved, or else the difference between the rent reserved in the lease and the rental value of the premises under the conditions complained of.27

The failure to furnish such facilities might constitute what is technically called a "constructive eviction." This has been defined as a “substantial deprivation of the beneficial enjoyment of the demised premises." 28 It has also been said to exist where the landlord has "done or suffered some act by which the premises are rendered untenantable, and has thereby caused a failure of consideration for the tenant's promise to pay rent." 29 Failure to supply elevator service, 26 McAdam on "Landlord and Tenant," Vol. II, p. 1381, et seq.; 24 Cyc., p. 1046.

27 Volga Realty Co. v. Holt Co. (App. Term, 1st Dept.) 104 Misc. 581, 172 N. Y. Supp. 206; Franklin Fire Ins. Co. v. Weinberg, 110 Misc. 644, 181 N. Y. Supp. 15. The latter case holds that damages for such consequential injuries as deterioration of goods by reason of failure to supply heat, cannot be recovered.

28 McAdam on "Landlord and Tenant," Vol. II, page 1381; 24 Cyc., p. 1129.

29 Schulte Realty Co. v. Pulvino (App. Term, 1st Dept.), 179 N. Y. Supp. 371.

water, or steam heat, has been held to constitute an eviction of this sort. 30 The effect of a constructive eviction is to justify the tenant in abandoning the premises, release him from further liability on his lease, and permit him to recover as damages "the difference between the value of his lease for the unexpired term and the stipulated rent." 31 But it is the firmly settled law that in order so to take advantage of a "constructive eviction," the tenant must first completely abandon possession of the leased premises.32

In an emergency such as existed at the time when the laws which are the subject of this volume were enacted, such remedies as these were obviously inadequate to protect tenants whose removal landlords desired to compel. A problematical damage suit was a risk which many a landlord might have been very willing to take if, by depriving a tenant of heat, water, or service of other description, he could force him out and thereafter lease the premises to another at an increased rate.

Accordingly, we find that among its initial "permanent emergency laws the Legislature passed a statute 33 making it a misdemeanor punishable by imprisonment for not more

30 McAdam, id., pages 1384, 1397, 1401. See Harper v. McMahon (Supreme Court, Wisconsin), 167 N. W. 431.

31 McAdam, p. 1437, et seq.

32 Id., p. 1385; Harperley Hall Co. v. Joseph (App. Term, 1st Dept.), 187 N. Y. Supp. 120; Herrmann v. Chase, 140 N. Y. Supp. 371; Bliss v. Clark, 172 N. Y. Supp. 112; Perry-Freeman Co., Inc., v. Murphy, 164 N. Y. Supp. 74; Simon v. Thomas (App. Term, 2nd Dept.), memorandum decision, unreported, No. 530, Dec. 13, 1920; Rural Pub. Co., Inc., v. Katzman (App. Div.), 188 N. Y. Supp. 537. The distinction which the law makes between a "constructive eviction" and an "actual, partial eviction" should be noted. To take advantage of the latter, a tenant need not remove from the portion of the premises which he continues to occupy, and the obligation to pay rent is suspended while such eviction continues. See Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370; Harperley Hall Co. v. Joseph, supra; also, page 115. 33 Laws of 1920, Chapter 131, Penal Law, § 2040, effective April 1, 1920.

than one year, or by a fine of not more than five hundred dollars, or both, 34 for "any lessor " wilfully or intentionally to fail to furnish "water, heat, light, power, elevator service or telephone service" to an occupant of a building or part thereof in which such service was necessary to the proper or customary use of such building," or wilfully or intentionally to interfere with "the quiet enjoyment of the leased premises."

This statute was found not quite broad enough to be effective. Its effect was avoided by persons who claimed not to be "lessors," but merely representatives of the lessors. Being a criminal statute, it was, of course, strictly construed. So, in September, 1920, this law was amended to its present form, which will be found in full in Appendix A of this work. 35

In addition to the specific items of service mentioned in the statute, to-wit, "hot or cold water, heat, light, power, elevator service" and "telephone," the statute as amended adds "or any other service or facility." This expression is very broad and may include many items, such as a dumb waiter delivery system in a house equipped with a dumb waiter, or mail box and bell from hallway vestibule to tenant's apartment, where building is equipped with these appurtenances. The test would seem to be whether the item of service may come fairly within the "terms, expressed or implied" of the "lease or rental agreement."

It should be noted that the benefits of this statute run in favor of "any occupant " of "any building," and are

not restricted to those who are tenants in the full technical sense of the word, nor to residential buildings. It appears to be only on this ground,-that "any occupant " is en

34 Penal Law, § 1937.

35 Laws of 1920, Chapter 951, infra, Appendix A, page 279.

titled to the facilities mentioned in the statute if they are necessary to the proper or customary use of the portion of the building which he occupies, that a recent conviction under this law may be sustained.

In this case 36 the landlord had acquired the premises by purchase at a mortgage foreclosure sale. The emergency laws do not protect a tenant in a case of mortgage foreclosure, and the law contains a special provision, unaffected by the recent legislation, permitting summary dispossess in such cases.37 Nevertheless, for some reason undisclosed in the record, the tenants in the house in question had been permitted to remain in their apartments despite the protests of the purchaser. Thereupon he refused to give them elevator, telephone or dumbwaiter delivery service. They instituted a criminal prosecution under the emergency law quoted, and the new owner of the property was convicted. The court's opinion refers to the protection afforded to the tenants' occupancies by the emergency laws, but clearly this is a misconception. The conviction is sustainable, however, as has been said, upon the theory that the complainants were "occupants" of the premises, even after the foreclosure sale, and therefore came within the protection of the law we are considering.

It is not every failure to furnish heat, light and other service that will sustain a criminal prosecution or constitute a constructive eviction. To sustain a prosecution, the failure must be wilful or intentional. To constitute a constructive eviction and justify a damage suit by reason thereof, the failure must be without justification or reason

36 People, etc., on complaint of Hans Frohman v. Cox (New York City Magistrate's Court, 12th District, Ryttenberg, J.), reported in N. Y. Law Journal, Aug. 24, 1921.

37 Code of Civil Procedure, § 2232, subd. 2; Civil Practice Act, § 1411, subd. 2.