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continued during the whole residue of the term ; that notwithstanding such eviction, the defendant voluntarily continued to enjoy, use and occupy the residue of the premises until the expiration of the term on the first of May, 1848; that after the first of February, 1818, the plaintiff prosecuted the defendant in an action of assumpsit upon the agreement, to recover the three quarters' rent, due on that day; in such action the defendant interposed as a defence the eviction of him by the plaintiff from a part of the demised premises, and upon trial of this issue a verdict was rendered in favor of the defendant, upon which judgment was entered.” The judge decided as matter of law upon said facts, that such wrongful eviction of the defendant from a part of the premises, suspended the rent, and that the plaintiff could not recover for the use and enjoyment of the residue of the premises while such eviction continued ; and therefore, whether the record and judg. ment in the former action were or not a bar to a recovery for the use and occupation from May 1st, 1847, to February 1st, 1818, that the eviction having continued during the whole term, this action for a compensation for the use and occupation of the residue of the premises, could not be sustained ; and directed judgment in favor of the defendant. On an appeal by the plaintiff, the Court of Common Pleas, at General Term, affirmed the judgment. The plaintiff appealed to this court.

During the pendency of the suit, Vermilya, the plaintiff, died, and the suit was continued in the name of Christopher, his executor.

A. S. Garr, for the appellant. M. G. Harrington, for the respondent. PARKER, J. The judge found the fact that after the leasing of the premises for one year, viz., from the first day of May, 1847, to the 1st of May, 1848, by a written lease, not under seal, at a rent of $200, payable quarterly, and after the defendant had entered into possession under such agreement, before any rent had become payable, the plaintiff entered upon the premises and evicted the said tenant from a part thereof, which eviction continued during the whole residue of the term of the hiring.

It is contended by the plaintiff's counsel, that although such an eviction would be a bar to an action on the agreement to pay rent, yet that it is no bar to an action under the Statute to recover a reasonable sum for the use and occupation, if the tenant continue to occupy a portion of the premises after such eviction from a part. There is no reason for such a distinction, nor can it be sustained by authority. The rule is, that if the landlord enter wrongfully upon or prevent the tenant from the enjoyment of a part of the demised premises, the whole rent is suspended till the possession is restored. The Fitchburg Corporation v. Melven, 15 Mass. R. 268. Nelson, C. J., said in Lawrence v. French, 25 Wend. 445, “his (the landlord's) title is founded upon this, that the land leased is enjoyed by the tenant during the term : if, therefore, he be deprived of it, the obligation to pay ceases.” And Spencer, Senator, in Dyett v. Pendleton, 8 Cowen, 731, states as the reason for the rule, “ as to the part retained, this is deemed such a disturbance, such an injury to its beneficial enjoy. ment, such a diminution of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent.” It would be a palpable evasion of the rule and of the penalty the law imposes upon the landlord for a wrongful eviction, to hold that he may recover for use and occupation on a quantum meruit, when he is not permitted to recover on the agreement itself.

The exception to the rule is where a part is recovered by title paramount to the lessor's; for in that case he is not so far considered in fault, as that it should deprive him of a return for the part remaining. Lawrence v. French, 25 Wend. 445; 8 Bac. Abr. 514, tit. Rent, L.; Gilbert on Rents, 173. And where the tenant enters, but is prevented from obtaining the whole of the premises, by a person holding a part under a prior lease executed by the landlord, it has been placed upon the same footing as an eviction by title paramount, and the landlord has been permitted to recover for use and occupation on a quantum meruit. Lawrence v. French, 25 Wend. 443; Luduell v. Newman, 6 Term R. 458; Tomlinson y. Day, 2 Brod. & Bing. 680.

I know the rule has been laid down in some of the elementary books, Story on Cont. $ 657; Taylor, Lan. & Ten, 443, to be that when the rent is entire and the landlord evicts the tenant during his term out of part of the premises, he may abandon the residue, and is not chargeable for the occupation of any part; but that if the tenant still continue to occupy the residue, he is chargeable upon a quantum meruit. The rule has been thus stated on the authority of two nisi prius cases, viz.: Smith v. Raleigh, 3 Camp. 513, and Stokes v. Cooper, a case not reported but referred to in a note to the same case, as having been decided by Dallas, J., at the Worcester Lent Assizes. In Smith v. Raleigh it appeared the tenant abandoned the premises after being evicted from a part, but the decision was not put by Lord Ellenborough on that ground, and I think the tenant would equally have been entitled to judgment, if he had remained in possession of the residue. The only case that can be found favoring the idea that a tenant who remains in possession of the residue during the term, after an eriction from part, is chargeable, is that of Stokes y. Cooper, above cited. And that is not sufficiently reported to enable us to know what were the facts of the case ; and if it were so, it would be entitled only to the weight due to a hastily made decision at the circuit. If the decis. ion was what it is claimed to have been, it is at war with the rule of law as it has been generally stated in well-considered cases. The consequence of an eviction from part is not merely a discharge of the tenant from the rent, provided he abandons the residue, but it is a dis, charge of the tenant from any rent or liability for the occupation 01 the residue during the term of hiring. In Dyett v. Pendleton, o Cowen, 731, Spencer, Senator, said : “ This distinction, which is as pero fectly well settled as any to be found in the books, establishes the great principle that a tenant sball not be required to pay rent, even for the part of the premises which he retains, if he has been evicted from the other part by the landlord ;” and the rule as recognized in other cases and generally stated in the treatises is, that an eviction from part will operate as a suspension of the whole. 24 Wend. 445 ; Comyn's Land. & Ten. 524; 2 Saund. Pl. & Ev. 630.

I suppose it is the right of the tenant under such circumstances to remain in possession of the residue during the term, and that he can neither be made liable on the original lease nor in an action for use and occupation, unless he holds over after the expiration of his term.

If I am right in this conclusion, the wrongful eviction of the defendant was a bar to the plaintiff's right of recovery for the use of the premises in any form, and it is not necessary to consider whether, or to what extent, the litigation of the same subject-matter or of three fourths of it at least, in the former action, would have constituted a good defence.

There are no questions properly before us for examination, except those presented by the bill of exceptions. We cannot review the decision of the court below, on the motion to set aside the judgment, on the grounds of surprise and irregularity. These were matters of discretion, and did not involve the merits. I think the judgment of the court below should be affirmed. GARDINER, C. J., also delivered an opinion in favor of affirmance.

Judgment affirmed.

EDGERTON 1. PAGE.
COURT OF APPEALS OF NEW YORK. 1859.

[Reported 20 N. Y. 281.] APPEAL from the Common Pleas of the city and county of New York. Action to recover one quarter's rent of the first floor of brick building No. 8 Fulton Street in said city, for the quarter ending May 1st, 1855, leased by the plaintiff to the defendant for one year from May 1st, 1854, at a yearly rent of $1,500, payable quarterly on the first days of August, November, February, and May. The defendant in his answer set out a copy of the lease, by which it appeared that the defendant was to have the privilege of renewal for one year at the same rent. The answer alleged that this privilege was one of the main inducements on the part of the defendant to the taking of the lease, and one of the principal causes of its value. The answer further alleged that the plaintiff, between the first days of February and May, 1855, was the occupant of the entire upper part of the building in question, and also of the adjoining building ; that between those days, and while the defendant occupied the demised premises, the plaintiff wantonly, maliciously, and negligently permitted certain water-pipes, coming down through the rear of the building and communicating with a sewer under the demised premises, and which pipes were used for carrying off the waste water from the upper stories of the building, to get out of order and leak; that the plaintiff, knowing this, maliciously and negligently permitted large quantities of water and filth to flow through the pipes, which leaked therefrom into the demised premises, injuring the property of the defendant, deposited therein, to the amount of $390, interfering with and depriving the defendant of the beneficial enjoyment of the premises ; that the plaintiff could, by ordinary care and prudence, have prevented the injury, and that the defendant requested the plaintiff to repair the pipes or abstain from their use, which he neglected to do; that the defendant was injured to the amount of $250 in the prosecution of his business during the quarter in question. The answer further alleged, that at divers times during the quarter in question, large quantities of water, filthy and otherwise, were thrown out by the plaintiff and his servants, from the rear windows of the portion of the building occupied by the plaintiff, so negligently and maliciously as to run into the demised premises, by which the defendant was injured to the amount of $150; that the defendant was compelled, by the injuries, to abandon the possession of the premises on or about the 1st of May, 1855, thereby losing the benefit and being deprived of the privilege of renewal created by the lease which he intended to avail himself of but for said injuries. The answer insists upon the facts as a defence to the action, and also as a counter-claim. The plaintiff demurred to the answer and assigned several causes, among them that the facts did not constitute a defence nor a counter-claim available to the defendant in the action. The cause was heard at Special Term, and judgment given for the defendant upon the demurrer. The plaintiff appealed; the court at General Term reversed the judgment, and gave judgment for the plaintiff, from which the defendant appealed to this court.

John Graham, for the appellant. Winchester Britton, for the respondent. GROVER, J. The denurrer presents two questions: First, whether the facts alleged in the answer constitute a defence; second, whether they constitute a counter-claim, available to the defendant by way of recoupment or otherwise in this action. The rule has long been settled, that a wrongful eviction of the tenant by the landlord, from the whole or any part of the demised premises, before the rent becomes due, pree cludes a recovery thereof until the possession is restored. Christopher V. Austin, 1 Kern. 217. Whether this eviction must be actual by the forcible removal of the tenant by the landlord from the demised premises or a portion thereof, was not settled in this State until the case of Dye v. Pendleton, 8 Cow. 728. In that case, the principle was established by the Court for the Correction of Errors, that when the lessor creat a nuisance in the vicinity of the demised premises, or was guilty of acts that precluded the tenant from a beneficial enjoyment of the premises, in consequence of which the tenant abandoned the possession before the rent became due, the lessor's action for the recovery of the rent was barred, although the lessor had not forcibly turned the tenant out of possession. Ever since that case, this has been considered as a settled rule of law binding upon all the courts of the State. Such act of the lessor, accompanied by an abandonment of possession by the lessee, is deemed a virtual expulsion of the tenant, and, equally with an actual expulsion, bars the recovery of rent. The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord ; and thus the consideration of his agreement to pay rent has failed. In case of eviction from a portion of the premises, the law will not apportion the rent in favor of the wrong-doer.

In this case, the answer shows that the defendant continued to occupy the premises for the whole time for which the rent demanded accrued. In this, the case differs from Dyett v. Pendleton, supra. I cannot see upon what principle the landlord should be absolutely barred from a recovery of rent, when his wrongful acts stop short of depriving the tenant of the possession of any portion of the premises. The injury inflicted may be to an amount much larger than the whole rent, or it may be of a trifling character. In all the cases where it has been held that the rent was extinguished or suspended, the tenant has been deprived, in whole or in part, of the possession by the wrongful act of the landlord, either actually or constructively. There is no authority extending the rule beyond this class of cases. It would be grossly unjust to permit a tenant to continue in the possession of the premises, and shield himself from the payment of rent by reason of the wrongful acts of the landlord impairing the value of the use of the premises to a much smaller amount than the rent. This must be the result of the rule claimed by the defendant. The moment it is conceded that the injury must be equal to the amount of the rent, the rule is destroyed. It would then only be a recoupment to the extent of the injury. In Ogilvie v. Hull, 5 Hill, 52, Nelson, C. J., in giving the opinion of the court, says: That no general principle is better settled, or more uniformly adhered to, than that there must be an entry and expulsion of the tenant by the landlord, or some deliberate disturbance of the possession depriving the tenant of the beneficial enjoyment of the demised premises, to operate a suspension or extinguishment of the rent. The rule contended for by the defendant is a very different one, suspending or extinguishing the rent whenever the enjoyment, in consequence of the tortious acts of the lessor, becomes less beneficial than it otherwise would have been. The true rule, from all the authorities is, that while the tenant remains in possession of the entire premises demised, his obligation to pay rent continues.

The remaining question is whether a counter-claim, arising from the facts contained in the answer, is available to the defendant in this action.

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