Action by a tenant in possession of premises for a declaratory judgment as to its right (1) to remove from the premises and claim a constructive eviction; (2) to remain in possession and refuse to pay rent by reason of an actual eviction because of the nonperformance of a covenant in the lease to make an alteration in the premises; (3) to have specific performance of such covenant; and (4) for damages for the breach thereof. The action was consolidated with a summary proceeding by the landlord for nonpayment of rent. Tenant appeals from a judgment and order (one paper) which granted it nominal damages and awarded possession to the landlord. Judgment and order affirmed, with costs. The decision of the trial court that there is no basis for declaring that the tenant had any right to claim either constructive or actual eviction is amply supported by the evidence. ( Thomson-Houston Elec. Co. v. Durant Land Improvement Co., 144 N.Y. 34; O'Brien v. Smith, 59 Hun 624, opinion in 13 N YS. 408, affd. 129 N.Y. 620; Forshaw v. Hathaway, 112 Misc. 112; Drago v. Mead, 30 App. Div. 258.) There was no abuse of discretion in the refusal to grant specific performance. ( Beck v. Allison, 56 N.Y. 366.) Plaintiff offered no evidence which warranted an award of larger damages. Johnston, Sneed, Wenzel and MacCrate, JJ., concur; Nolan, P.J., dissents and votes to modify the judgment so as to provide for an award of damages to appellant on the basis of the concession on the trial, by the attorney for respondent, that damages might be assessed by means of an apportionment of rent.