Legal Opinion · Concurrence

Hall v. Irvin

Appellate Terms of the Supreme Court of New York

Decided May 15, 1902Published

Appeal by the landlord from a final order made in the Municipal Court, second district, borough of Manhattan, in a summary proceeding taken for nonpayment of rent.

1Concurrence

Truax, J. (concurring).

In an action for rent, the defendant cannot set up as a defense a constructive-eviction while he remains in possession of the premises (Boreel v. Lawton, 90 N. Y. 247), but it is equally well-settled that a landlord cannot maintain an action for rent if the tenant is able to show an actual eviction from a portion of the premises (Sirey v. Braems, 65 App. Div. 472), that is, an actual eviction from a portion of the premises suspends a landlord’s right to maintain an action for rent during the actual eviction, and this actual eviction would, under section 2244 of the Code…

2Cases cited2 opinions

  1. Sirey v. BraemsAppellate Division of the Supreme Court of the State of New York · 1901
  2. Dodd v. . NeilsonNew York Court of Appeals · 1882

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