¶1The defense of partial eviction so as to discharge the payment of rent is not available in a situation where the basement of the demised premises is excessively damp. This would constitute a constructive eviction, however, if accompanied by tenant’s abandonment of the premises (Boreel v. Lawton, 90 N. Y. 293; Ferguson Bros. & Forshay v. Ward, 147 N. Y. S. 868). Since the tenant, herein, is still in possession, it was error for the court below to deny landlord’s request for a final order for nonpayment of rent. Moreover, since under the terms of the lease, such damages as tenant asserts in his counterclaim can only be recovered in the event of landlord’s negligence, the judgment on the counterclaim must be vacated for failure of proof of negligence. However, such proof may be adduced at a new trial.
¶2Determination below reversed in all respects and final order in favor of the landlord is directed to be entered, without prejudice to tenant’s commencing a new action for damages due to negligence.
¶3The final order and judgment should be reversed, with $30 costs, and final order and judgment directed for landlord as prayed for in the petition, with costs.
¶4Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.
¶5Final order and judgment reversed, etc.