
    Benjamin F. Romaine et al., Resp’ts, v. Thomas T. Brewster, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed January 18,1894.)
    
    Pleadings—Counterclaim. •,
    Where the subject of the action is the recovery of certain rent under the terms of a written contract, a claim to recover damages by reason of the breach of such contract is a proper subject of counterclaim in such action.
    Appeal from a judgment in favor of plaintiffs.
    
      Davison & Chapman, for app’it; Herman W. Schnitz, for resp’ts.
   McCarthy, J.

This action is brought to recove the rent, for the months of August and September, of a flat or apartment, on the top floor of an apartment house, in the city of New York, known as the “Lyndhurst.” The allegations of the answer and counterclaim, which are conclusive as to the facts for the purposes of this agreement, show that the plaintiffs failed to promptly repair and care for certain parts of the building entirely within their care and control as landlords, and not leased to any particular tenant. There were frequent overflows and leakages from a large tank on the. roof down into and which caused the apartment to become and remain so damp and unhealthful that the defendant was obliged to vacate, which he did on or about the 12th day of July, 1893, i. e. there was constructive eviction as of this date. Owing to the unhealthful condition of the flat, defendant’s wife became seriously ill, and the defendant suffered damages in consequence thereof, as specifically alleged to wit.: .expenses of medical attendance and drugs, loss of service, etc. He was also put to unexpected and otherwise unnecessary expense in finding another place of abode and removing his family and other household effects thereto. These damages' he sets up by way of counterclaim. The plaintiff has demurred to the counterclaim on the ground that it is not a cause of action arising out of the contract or transaction set forth as the foundation of the plaintiff’s claim, to wit: “the recovery of rent.” It is to be noted that the constructive eviction occurred before the rent sued for became due. By the demurrer the facts set out in the amended answer as constituting a counterclaim are conceded but claimed to be insufficient. The lease is in writing and under seal for the term of eleven and one-half months. The covenant for quiet enjoyment is to protect the lessee from the unlawful claims of third persons having a title paramount to the lessor, but such covenant, when fully written out, provides also for the protection of the lessee against the unlawful entry of the lessor himself. Consequently, where the. law implies, such a covenant from the character and terms of the instrument not containing any express engagement, the. scope of the implied guaranty should be equally extensive. And it need not be averred in the pleading that the grantor acted under a claim of title, but if the character of the act be such as is reasonable to show that the defendant acted upon such an assumption the action will be sustained. The Mayor, etc. of N. Y. v. Mabie, 13 N. Y. 156,157. And an eviction either actual or constructive is necessary to constitute a breach of this covenant. Boreel v. Lawton, 90 N. Y. 293, 296 ; Edgerton v. Page, 20 N. Y. 281. An eviction is defined to be when there has been an obstruction to the beneficial enjoyment of the premises and a diminution of the consideration of the contract by the act of the landlord, see McAdarn on Landlord and Tenant pp: 478, 479, and it is not necessary that there should be actual expulsion of the tenant from the premises. If the landlord commits or suffers acts to be committed which make it necessary for the tenant to remove,' this is equivalent to expulsion. See Tallman v. Murphy, 120 N. Y. 345. 362 ; 31 St. Rep. 483. If the law as thus far presented be correct, then the facts set out in the alleged counterclaim amount to a breach of the contract of letting and arose out of the contract or transaction set forth in the complaint and are connected with the subject of the action and therefore a proper subject for counter-claim. Grover, J. in Edgerton v. Page, 20 N. Y. at page 286, says: “Unless the acts of the defendant amount to a breach of the contract of letting, they are not connected with the subject of the action. In the case of the Mayor of New York v. Mabie, 13 N. Y. 151, it was held by this court, that a covenant for quiet enjoyment by the lessor was implied in a lease under seal for a term not exceeding three years, since as before the Revised Statutes, that this covenant was broken by an interference with possession by the lessor under a claim of right; consequently that damages sustained from such acts might be recovered in an action for rent.” See also Cook v. Soule, 56 N. Y. 422; § 501 of the Code of Civil Procedure. The counter claim must have such a relation to and connection with the subject of the action that it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the counterclaim should be settled in one action by one litigation and that the claim of one should be offset against or applied upon, the claim of the other. Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552, 556, 557. Here the subject of the action is the recovery of certain rent under the terms of a written contract and the counterclaim is to recover damages by reason of the breach of said contract. The cases cited by the respondent have been carefully examined and do not support his contentions but rather sustain the law presented here. In those cases the defendant either held over and thus waived all objection or the tenant was in possession of the premises during the whole of the term and therefore there was no abandonment or constructive eviction or breach of the covenant of quiet enjoyment and that any damages which the defendant may have suffered could not be under the contract which was the subject of the action, but rather against the plaintiff as trespasser or wrongdoer. The facts here, however, are entirely different. For these reasons the judgment sustaining demurrer and dismissing defendant’s counterclaim should be reversed and the demurrer overruled with costs.

FrrzsnroNs and Neivburger, JJ.. concur.  