¶1This is an appeal from a judgment dismissing the complaint in an action for rent, which was defended on the ground that there had been a constructive eviction by reason of the landlord’s breach of a covenant to furnish sufficient heat. In March, 1908, plaintiff, who was tenant in possession of the premises, signed a renewal lease for a term beginning September 1, 1908, and ending September 30, 1909, whereby it was provided that the number of steam radiators should be “increased and enlarged to give sufficient heat; i. e., a temperature of at least 65 degrees in cold weather.” In view of the fact that, as it can be gathered from the record, steam to these radiators was supplied from a central plant, in the basement of the house, wholly under control of the landlord, this covenant must be construed as if it were not only to increase the number of steam radiators, and to enlarge them, so as to be capable of heating the apartment to a temperature of 65 degrees, but to supply them with steam of a sufficient quantity and quality to effect that result.
¶2In October and November, 1908, the apartment was chilly and uncomfortable, and was not heated to a temperature of 65 degrees, either Fahrenheit or Centigrade, if we may take judicial notice that a normal person will not be chilly and uncomfortable at either of those temperatures. There is no evidence whether this result arose from a failure on the part of the landlord to increase and enlarge the steam radiators in the apartment, or from failure to supply sufficient steam; but it does appear that the tenant and his wife made numerous complaints to the landlord, not only as to lack of heat, but also of hot water. On February 11, 1909, the tenant notified the landlord of his intention to vacate, owing to the latter’s failure to keep up the steam heat and hot water supply, and did vacate at some time during that month. This action was brought to recover for rent claimed to have accrued, after the removal, in March, April, and May, 1909. There can be no doubt that the failure of a landlord to supply sufficient heat to an apartment used as a dwelling and fitted with apparatus for that purpose, over which the landlord has control, constitutes a constructive eviction, if the tenant só elects and moves out. Butler v. Newhouse, 85 N. Y. Supp. 373. It is only by removal that the tenant can make his election. Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170. . The surrender must be made within a reasonable time after discovery of conditions which are claimed to constitute an eviction. Ryan v. Jones, 2 Misc. Rep. 65, 20 N. Y. Supp. 842; Copeland v. Luttgen, 17 Misc. Rep. 604, 40 N. Y. Supp. 653; Stein v. Rice, 23 Misc. Rep. 348, 51 N. Y. Supp. 320; Butler v. Newhouse, 85 N. Y. Supp. 373; Butler v. Carillo, 88 N. Y. Supp. 941; O’Gorman v. Harby, 18 Misc. Rep. 228, 41 N. Y. Supp. 521.
¶3*107It was evident to the tenant in October that there was insufficient heat in his apartment; but he did not move until February, Upon discovery of the faulty condition of his apartment in October, it was his right to treat the lease as canceled and move" out, after notifying the landlord and waiting a reasonable time for him to remedy conditions; and if, by reason of the increasing severity of the weather, or other cause, the temperature of the apartment became continuously less, the ensuing cumulative discomfort might have started afresh the reasonable time in which he had to remove. Marks v. Dellaglio, 56 App. Div. 299, 67. N. Y. Supp. 736. The record discloses no evidence of the condition of the premises in February sufficient to show what was the condition of the apartment at that time, or sufficient facts to show the tenant’s right to claim a constructive eviction in that month. It is not enough to prove that the tenant complained of insufficient heat between November and February; nor is he helped by self-serving declarations in a letter to the landlord, which is made part of the record, nor by proof of a statement by the landlord that he “intended to improve conditions” in the steam supply, which is not an admission of a failure to perform his contract. ■
¶4Judgment will not be ordered in favor of the landlord on the theory that defendant cannot, by any possibility, be successful on a new trial, since it may be possible that he can show a substantial diminution of heat in February, or a promise on the part of the landlord to remedy conditions. Such a promise would constitute a waiver, on his part, of the right to take advantage of the fact that the tenant had not removed within a reasonable time after discovery of the defective condition of the premises. Krausi v. Fife, 120 App. Div. 490, 105 N. Y. Supp. 384.
¶5Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.
¶6GIEGERICH,. J., concurs. LEHMAN, J., concurs in result.