does not in terms bind the landlord to supply any heat whatever. Ryan v. Jones (1892) 2 Misc. 65, 20 N. Y. Supp. 842; Jackson v. Paterno (1908) 58 Misc. 201, 108 N. Y. Supp. 1073, affirmed in (1908) 128 App. Div. 474, 112 N. Y. Supp. 924.

Amount of heat required.

A contract for a heated apartment requires such heat as will render the temperature of the rooms reasonably comfortable for the average person generally during the time they are customarily occupied, due regard being had to the kind of use for which each room is intended, and excluding lapses due to sudden and severe changes in temperature and occasional inattention by the janitor, or to the necessary making of repairs or other unforeseen or excusable causes. Harper v. McMahon (1918) 167 Wis. 388, L.R.A. 1918D, 887, 167 N. W. 431. Failure to furnish as basis of action for damages.

If the landlord neglects and refuses to furnish the heat, light, etc., which his covenants require him to furnish, and the premises are thereby rendered unfit for occupancy, the law will not require the lessee to first pay the rent and then sue for damages suffered by the landlord's breach of his covenant. McSorley v. Allen (1908) 36 Pa. Super. Ct. 271.

Where the landlord expressly covenants to supply heat, the tenant may maintain an action against him, or counterclaim in an action which the landlord brings against him for damages for his failure to do so. See Elwood v. Forkel (1885) 35 Hun (N. Y.) 202; Myers v. Burns (1866) 35 N. Y. 269; Cook v. Soule (1874) 56 N. Y. 420; Walker v. Shoemaker (1875) 4 Hun (N. Y.) 579; Borchardt v. Parker (1908) 108 N. Y. Supp. 585.

But where there is no obligation on the part of the landlord to furnish heat other than that arising from the fact that the means of furnishing it are within his control, the tenant, although he may abandon the premises and successfully resist a claim for rent, cannot make such lack of heat the basis of an independent action for damages against the landlord, nor can

he continue to occupy the premises and counterclaim damage in an action by the landlord for rent. Bliss v. Clark (1918) 104 Misc. 543, 172 N. Y. Supp. 112.

Effect of misrepresentations as to heating apparatus.

A tenant who has rented a house in reliance upon the lessor's false statements with respect to the heating capacity of the furnace may either rescind the lease and abandon the premises, or continue to occupy the premises and pay rent and bring an action to recover damages for the deceit. Pryor v. Foster (1888) 17 N. Y. S. R. 472, 1 N. Y. Supp. 774.

Where a tenant has been induced to rent the premises by the representation of the landlord that the heating plant is adequate, and it proves to be worn out and worthless, he may, in an action by the landlord for rent, recoup the amount of the damages suffered by him by reason of the fraud. Bauer v. Taylor (1903) 4 Neb. (Unof.) 701, 96 N. W. 268. And it has been held that the intent or good faith of the landlord in making the representation is immaterial (Bauer v. Taylor (1903) 4 Neb. (Unof.) 710, 98 N. W. 29); but this view is not in accord with the weight of authority.

Damages recoverable for failure to furnish heat.

The measure of damages for breach of a contract of lease in failing to supply heat is the difference between the agreed value of the apartment when heated according to the contract of lease and its value when imperfectly and irregularly heated in the manner indicated by the evidence. Borchardt v. Parker (1908) 108 N. Y. Supp. 585; Lawrence v. Brunoff (1918) 172 N. Y. Supp. 116; Steinhaus v. Schechter (1918) 172 N. Y. Supp. 699; Purcell v. Warburton (1912) 70 Wash. 129, 126 Pac. 89.

While one measure of the tenant's damage is the difference in rental value between the premises as leased with heat and the rental value of the same premises without heat, yet the tenant is not relegated to this measure of damage alone, but, subject to the rule that he may not recover double

damages, he may also recover any reasonable expenses that he has been put to in doing what the landlord has covenanted to do and has failed to do, less the present value of the heaters used. Lawrence v. Brunoff (1918) 172 N. Y. Supp. 116; Jashnoff v. Wall (1918) 172 N. Y. Supp. 117; Gorham Constr. Co. v. Cohen (1918) 172 N. Y. Supp. 118; Bliss v. Clark (1918) 104 Misc. 543, 172 N. Y. Supp. 112.

Where the lessor undertakes to furnish "heat when necessary from October 1 to April 30, for ten hours per diem," the lessee may recover sums expended by him in heating the leased premises upon the lessor's failure to do so. Globe Asso. v. Brega (1914) 190 Ill. App. 60.

A loss to a tenant from idleness because he could not or would not work in a leased apartment because the proper temperature was not maintained by the landlord, who had covenanted to furnish heat, is not the natural or probable result of the breach of the covenant, especially where the difficulty could have been avoided at an inconsiderable outlay by the tenant himself. Ireland v. Gauley (1905) 95 N. Y. Supp. 521.

Failure to furnish heat as basis for constructive eviction.

Failure of the lessor to furnish heat when he has expressly or impliedly assumed that obligation, if continued for such a length of time that it may be said that the tenant has been deprived of the full use and enjoyment of the leased property for a material period of time, constitutes an eviction, when the tenant elects to consider it such, and surrenders the premises because thereof.

Illinois. Harmony Co. v. Rauch (1896) 64 Ill. App. 386.

Iowa. Filkins v. Steele (1904) 124 Iowa, 742, 100 N. W. 851.

Minnesota. Minneapolis Co-op. Co. v. Williamson (1892) 51 Minn. 53, 38 Am. St. Rep. 473, 52 N. W. 986; Bass v. Rollins (1895) 63 Minn. 226, 65 N. W. 348.

New York.-Koehler V. Scheider (1889) 15 Daly, 198, 4 N. Y. Supp. 611; Lawrence v. Burrell (1885) 17 Abb. N. C. 312; O'Gorman v. Harby (1896) 18

Misc. 228, 41 N. Y. Supp. 522; Butler v. Newhouse (1903) 85 N. Y. Supp. 373; November v. Wilson (1906) 49 Misc. 533, 97 N. Y. Supp. 989; Jackson v. Paterno (1908) 58 Misc. 201, 108 N. Y. Supp. 1073, affirmed in (1908) 128 App. Div. 474, 112 N. Y. Supp. 924; Graham v. Grape Capsule Co. (1908) 61 Misc. 87, 113 N. Y. Supp. 103; Siebold v. Heyman (1909) 120 N. Y. Supp. 105; Feist v. Peters (1910) 120 N. Y. Supp. 805; Lloyd Constr. Co. v. Dudgeon (1912) 76 Misc. 246, 134 N. Y. Supp. 888; Ollwerter v. Escher (1912) 78 Misc. 154, 137 N. Y. Supp. 881; Pakas v. Rawle (1915) 152 N. Y. Supp. 965; Berlinger v. Macdonald (1912) 149 App. Div. 5, 133 N. Y. Supp. 522; Bliss v. Clark (1918) 104 Misc. 543, 172 N. Y. Supp. 112.

North Dakota.-Russell v. Olson (1911) 22 N. D. 410, 37 L.R.A. (N.S.) 1217, 133 N. W. 1030, Ann. Cas. 1914B, 1069.

Pennsylvania.-McSorley v. Allen (1908) 36 Pa. Super. Ct. 271.

Wisconsin. - Harper v. McMahon (1918) 167 Wis. 388, L.R.A.1918D, 887, 167 N. W. 431.

And the failure of a landlord to make a furnace in a private house do the work contemplated and agreed upon as a condition of the continuance of the lease of the house relieves the tenant from the payment of further rent on vacating the premises. Rogers v. Babcock (1905) 139 Mich. 94, 102 N. W. 636.

The failure of the landlord to furnish heat need not be with an intent to compel the tenant to leave the property or deprive him of his beneficial enjoyment, all that is necessary being, that his act tends to compel the vacation. Berlinger v. Macdonald (1912) 149 App. Div. 5, 133 N. Y. Supp. 522.

Mere temporary inconvenience, however, is not enough, and the lessor has a right to a reasonable opportunity to rectify a defect in heating apparatus when notified of a deficiency in the heat. O'Gorman v. Harby (1896) 18 Misc. 228, 41 N. Y. Supp. 522; Merida Realty Co. v. Coffin (1910) 123 N. Y. Supp. 120; Berlinger v. Macdonald (N. Y.) supra.

if the heating apparatus was in p. oper condition at the beginning of the lease, and the condition changed during the term of the lease without the fault of the lessor, he is entitled to a reasonable time in which to make repairs. Me Yere v. Withers (1914) 15 Ga. App. 688, 84 S. E. 163.

The deprivation of heat must be continued at the time of the abandonment in order to work a constructive eviction. Ryan v. Jones (1892) 2 Misc. 65, 20 N. Y. Supp. 842.

A constructive eviction cannot be claimed where the tenant remains in possession, although the heat furnished is so inadequate as to have warranted abandonment, as abandonment or surrender of possession is an essential element of constructive conviction. Jackson v. Paterno (1908) 58 Misc. 201, 108 N. Y. Supp. 1073, affirmed in (1908) 128 App. Div. 474, 112 N. Y. Supp. 924; Siebold v. Heyman (1909) 120 N. Y. Supp. 105; Thomson v. Ludlum (1901) 36 Misc. 801, 74 N. Y. Supp. 875. And to constitute constructive eviction, the abandonment must be complete. Merida Realty Co. v. Coffin (1910) 123 N. Y. Supp. 120.

And the surrender must be made within a reasonable time after the accrual of the right to surrender the premises for failure to supply heat, unless there has been a waiver by the landlord of his right to take advantage of the tenant's failure to surrender the premises within a reasonable time. Siebold v. Heyman (1909) 120 N. Y. Supp. 105.

A tenant cannot claim the right to avoid the lease because of misrepresentations as to the heating apparatus where he continued in possession for some time after discovering the falsity of the alleged representations. Stokes v. Avila (1916) 94 Misc. 185, 157 N. Y. Supp. 975.

i. Water supply.

1. Generally.

A warranty of fitness for immediate occupation is not a warranty that the premises will continue habitable during the term. Hence it has been held that the doctrine of Smith v. Marrable

does not apply where the want of habitability is due to the stopping up of the water pipes during the occupancy of the tenant. Chester v. Powell (1885) 52 L. T. N. S. (Eng) 722.

A lease of a bedroom does not carry with it as a necessary incident a right to a supply of water. Sturm v. Huck (1908) 77 N. J. L. 59, 71 Atl. 44.

In Maywood v. Logan (1889) 78 Mich. 135, 18 Am. St. Rep. 431, 43 N. W. 1052, it is intimated that where it was evident to the landlord that the tenant intended to use the water from a well on the premises for family purposes, he impliedly warranted it to be wholesome; but as the case was one in which the landlord was guilty of fraudulent concealment of the unwholesome condition of the water, the point cannot be said to have been expressly decided.

A lessor who, upon examining a weli on the premises subsequently to the lessee's taking possession, discovered a dead dog therein, which he did not remove and of which he did not inform the lessee, merely advising that the water be not used for cooking and drinking, is liable for damage occasioned by sickness caused by drinking the water. Maywood v. Logan (Mich.) supra.

2. Hot water.

In the absence of any stipulation to that effect in the lease, or implied from the fact that the heating apparatus was under the control of the landlord, a landlord is under no obligation to furnish the tenant with hot water. Slaughter v. Johnson (1906) 128 Ill. App. 417.

Where an apartment is leased in a building consisting of several apartments, each to be used as a private dwelling, and there is no way of obtaining hot water except by means of a plant under the exclusive control of the landlord, the landlord is obligated to furnish sufficient hot water, and a covenant to that effect must be read into the lease. Lloyd Constr. Co. v. Dudgeon (1912) 76 Misc. 246, 134 N. Y. Supp. 888.

Where the fixtures of the top floor of a private house are connected with the general hot water system of the house,

which was heated from the kitchen in the basement, and was under the lessor's control, a covenant to supply hot water to the lessee of the top floor may reasonably be implied. Cushier v. Adams (1912) 76 Misc. 219, 134 N. Y. Supp. 561.

That covenant, however, would be to supply only such hot water as would reasonably be expected under the circumstances; namely, such supply as would be furnished ordinarily in a small private house. It would certainly be unreasonable to expect the landlord of a single leased apartment situated in his private house to keep a supply of hot water at all hours, day and night, for the convenience of his single tenant. Ibid.

j. Janitor service.

Inconveniences arising from deficiencies in janitor service which the landlord has agreed to furnish will not justify a tenant in quitting the demised premises if there was generally a substantial performance, and no evidence of an intent not to perform, or of a continuous failure to perform. Humes v. Gardner (1898) 22 Misc. 333, 49 N. Y. Supp. 147.

k. Ill repute of premises.

In Meeks v. Bowerman (1861) 1 Daly (N. Y.) 99, it was held that the lessee was not warranted in abandoning the premises because of the landlord's failure to disclose the fact that the dwelling had been previously occupied as a brothel, in consequence of which the tenant and his family were annoyed and insulted by lewd persons

calling at all times during the day and evening to obtain entrance for purposes of prostitution, the court taking the position that there was no fraudulent withholding of information because there was no obligation to disclose it.

But in Staples v. Anderson (1865) 3 Robt. N. Y. 327, it was held that the failure of the lessor, upon being told by a prospective tenant that her purpose in hiring the house was to let out rooms furnished to gentlemen, to disclose the fact that the premises were in ill repute on account of the character of the preceding occupant, was a fraud which warranted the tenant in terminating the lease.

And in Rhinelander v. Seaman (1877) 13 Abb. N. C. (N. Y.) 455, it was held that a lessee is justified in rescinding a lease and abandoning the premises, where the lessor fraudulently, and with intent to deceive and injure him, wholly omitted to inform him that the premises had been used as a house of prostitution. The court said: "With great respect for the court deciding it, I cannot think that Meeks v. Bowerman (N. Y.) supra, is a correct exposition of the law on the subject. We have here clearly averred deceit and fraudulent concealment practised to the defendant's injury and damage. It must be that such act and concealments on the landlord's part should prevent a recovery." Staples v. Anderson (N. Y.) supra, is indirectly opposed to Meeks v. Bowerman and announces a better doctrine, more in accord with reason and justice." E. S. O.

V.

Carrier taxicab company.