
    Schenck and another v. Naylor.
    In an action to recover damages for the breach of a covenant, if the complaint does not show, either by express words, or by a necessary implication, that the covenant is broken by the defendant, it is bad upon demurrer.
    
      (October Special Term, 1853.)
    The defect is not cured by a general allegation, that the acts set forth were “a violation of the defendant’s covenant,”
    This action was brought by tne plaintiffs as tenants, against the defendant as landlord, for a breach of a covenant contained in an agreement for the letting of the basement of the premises known as Ho. 464 Pearl street, New York.
    The covenant alleged to be broken, is as follows: “ The plaintiffs show, that in said lease it is further agreed on the part of defendant, that the defendant should not let, of allow to be undeflet, any other part of the building Ho. 464 Pearl street, for a festaurant or porter-house.”
    The breach of the covenant is alleged as follows: “ The plaintiffs show that on or about June 1st, 1853, a porter-house was opened on the first floor above the basement, so let by defendant to plaintiffs, which porter-house is still occupied as such to the great damage of plaintiffs, and in violation of defendant’s agreement, as above stated.”
    The defendant demurred to the complaint, as not containing facts sufficient to constitute a cause of action, because the plaintiff had not averred, of shown, that the defendant let, of allowed to be underlet, any part of the building Ho. 464 Pearl street for a porter-house.
    
      Barnard & Parsons, for the defendant.
    I. It is certain that the breach alleged is not in the words of the covenant. It does not appear that the defendant had anything to do with the porter-house which was opened on the 1st of June. He has agreed not to let; or allow to be underlet, any other part of the building Ho. 464 Pearl street; and if a porter-house is kept there without being allowed by the defendant, he has not broken his covenant.
    II. The breach alleged is not tantamount to following the words of the covenant. If a porter-house was opened on the premises, it does not follow that the defendant let, or allowed to be underlet, the premises for that purpose. A porter-house may be there without any privity or consent of the defendant, and to allow the breach alleged to be good, would change the covenant from its clear terms to a covenant that a porter-house shall not be opened in any other part of the premises, without reference to any act or permission of the defendant.
    III. If the plaintiff cannot aver, or prove, that the defendant let, or allowed the premises to be underlet, for a porter-house, they cannot recover in this action, although they may be able to prove that a porter-house was opened there. /
    IV. The words in the averment of the breach, that said porter-house “ is in violation of defendant’s agreement,” is a conclusion of law from the facts previously stated. If these facts do not amount to a breach, the conclusion is no more correct than to allege that a dry-goods store was kept there “ in violation of defendant’s agreement.”
    
      J. Aitkins, for plaintiffs, contra.
    
    I. By the defendant’s agreement, as averred, it was understood that no porter-house or restaurant should be kept at any other part of the building. The breach is therefore sufficiently averred.
    II. The averment that a porter-house was opened in violation of defendant’s agreement, and the fact that it was so opened, requires the defendant to show some defence in mitigation, or otherwise, for the non-fulfilment of the agreement on his part.
    III. The defendant here puts himself on his own literal construction of the language of the agreement, and claims to be excused from the fair interpretation or meaning of the agreement. The plaintiffs have no control of any other part of the premises except the part hired by them from defendant, and there is no doubt that the defendant is bound in good faith to fulfil his agreement to the extent claimed by plaintiffs.
   Duer, J.

I cannot give that construction to the covenant in the lease which was insisted on by the counsel for the plaintiffs ; and giving the proper construction to the covenant, I cannot say that the complaint alleges a breach. The covenant is not general, but is limited to the personal acts of the defendant. It is not, that during the continuance of the lease no restaurant, or porter-house, shall be opened in any other part of the premises, but that the defendant will not let, nor allow to be under-let, any part of the premises for such a purpose. The complaint does not allege that either of these acts has been done by him, but merely, that in a certain part of the premises a porter-house has been opened. It is true, the words, “ in violation of the defendant’s agreement,” are added, but these words aver only a conclusion of law, and as the conclusion is not justified by any facts stated in the complaint, the averment is irrelevant and nugatory.

It may not be necessary that the exact words of a covenant . should be followed in assigning a breach, but it must distinctly appear, by express words, or by a necessary implication, that, admitting the truth of the facts stated in the complaint, the defendant has broken the covenant in its true sense and meaning; The words of the covenant need not be literally, but must, in all cases, be substantially followed.

If the defendant is the sole owner of the building described in the lease, it is difficult to believe that any part of it can be occupied as a porter-house, unless let by him, or by one of his tenants, for that purpose. Still such may be, and I have no right to say, is not the fact. It may be, that the occupant is a mere intruder and trespasser, or he may have entered, and claim to hold the possession, under a paramount title.

I am therefore forced to say, that as the facts set forth in. the complaint do not show, expressly, or by a necessary inference, a breach of the defendant’s covenant, they are not sufficient to constitute a cause of action.

Demurrer allowed, with liberty to the plaintiffs to amend upon the usual terms.

Approved upon consultation.  