
    HENRY D. TOWNSEND, Plaintiff and Respondent, v. JOHN GILSEY, Defendant and Appellant.
    A letting In good faith of a part of a building which, without the privity or consent of the landlord, is used for purposes of prostitution, will not excuse the payment of rent by tenants of other parts of the same building. To operate as an eviction and terminate the lease to other tenants, it must be shown that the letting of the part complained of was for the purpose of being put to an improper use, or at least with the knowledge of the landlord that it was to be used for such improper purpose.
    Before Monell, McCunn, and Freedman, JJ.
    
      [Decided May 3, 1869.]
    The action was to recover a quarter’s rent (from May 1 to August 1, 1862), under a written lease, for six years, from May 1,1860, of the first floor of the building on "the south-east corner of Broadway and Twenty-third street. The defense was, that after the defendant took possession, and before the rent sued for had accrued, the landlord let the lower part of the building and basement under the store occupied by the defendant to tenants, to he used and oocwpied, and was thereafter' oocwpied and used, as a house of ^prostitution and ill fame ; by reason whereof the premises occupied by the defendant were unfit for occupation, and he was thereby evicted therefrom.
    The action was tried by Mr. Justice McCunn, and a jury.
    At the close of the evidence the plaintiff’s counsel requested the Court to direct a verdict for the plaintiff. The defendant’s counsel requested the questions of fact to be submitted to the jury. The Justice refused to submit any question of fact to the jury, and directed a verdict for the plaintiff. . The defendant excepted, and appealed from the judgment.
    
      
      Mr. Nathan A. Chedsey for appellant.
    ■ The manner of fitting up the basement; the presence of Wet-more there; and the visitation thereof by prostitutes for prostitution, and knowledge thereof by him; and that the nuisance existed, until after the 1st of May, 1862, were clearly proved.
    Mr. Wetmore had the right, and promised to abate the nuisance, and it was his duty to do so. He created and continued the nuisance. The appellant complained of the same to the police; so did Mr. Mahoney; and the appellant and his under-tenants abandoned the premises because of the nuisance.
    The learned Justice should have submitted 'the several questions of fact to the jury as requested; and his refusal was erroneous; and the expressions of the Justice, as his reasons, were also erroneous (Gilhooly v. Washington, 4 Com.).
    
      Mr. Joseph J. Marrin for respondent.
    In order to defeat a recovery, the defendant was bound to show affirmatively that Wetmore or the plaintiff created the alleged nuisance or was instrumental in producing or maintaining' it.
    This is clearly laid down in Gilhooly v. Washington (3 Sandf., 330).
    The conclusion from that case is that in an action of covenant under a sealed lease direct instrumentality of the landlord in the creation or maintenance of the nuisance complained of must he shown by the defendant, in order to bar a recovery for rent;
    Ho testimony whatever was adduced to show that the basement was rented by Wetmore or the plaintiff for any improper purpose, or that Wetmore or the plaintiff were instrumental either in the creation or maintenance of the alleged nuisance.
    Nor is there any testimony to show that either Wetmore or the plaintiff were instrumental in maintaining the alleged nuisance.'
   Monell, J.

In the ease of Gilhooly v. Washington (3 Sandf. S. C. R., 330) the law applicable to this case is stated to be, that a letting in good faith of the portion of the premises complained of, without any reason to suspect the purposes for which they are to be used, will not excuse the payment of rent by other tenants. This case was affirmed by the Court of Appeals, without disturbing any of the reasons upon which the judgment below was founded (4 N. Y. R., 211).

To operate as an eviction and determine the lease, it was necessary for the defendant to show in this case that the letting of the lower part of the building was for the purpose of being put to an improper use, or at least with the knowledge of the landlord that it was to be occupied for such improper purpose.

The Court directed a verdict for the plaintiff, for the reason, as stated by the learned Justice, that a verdict for the defendant would be set aside, as being against the clear weight of the evidence.

I have carefully read all the evidence given on the trial, and I have not found any which would have justified a verdict for the defendant.

The only piece of evidence which it can be or is claimed to have some tendency toward supporting the defence and bringing the case within the rule of law above stated, is in the testimony of the defendant.

After stating the character of the occupancy of the basement, and of giving notice thereof to the plaintiff’s assignor, Wetmore, the defendant testified that he took the keys to Wetmore, and told him he abandoned the premises on account of the prostitution in the basement; to which Wetmore replied, “ If I could let the basement for any thing else, for a respectable business, I would have done so; bút I had to take what I can get, they are so far up.” And this is the only evidence upon which the defendant relies as showing a letting by Wetmore for purposes pf prostitution, or a knowledge in him that the premises were to be used for such purpose.

To give the effect to this piece of evidence which the defendant claims should be given to it, it must of itself (for there is no other evidence to support or corroborate it) be sufficient to fairly establish that Wetmore, when lie let the premises to Brooks, knew that Brooks hired them for and intended to use them in the exceptionable manner complained of. It is not enough that Wetmore afterward became aware of the objectionable use to which Brooks had put the premises.

This-declaration of Wetmore was made some eighteen months after the letting to Brooks, and at the time the defendant was about to abandon the premises on account of the misconduct of Brooks ; and the defendant was testifying to a conversation with Wetmore in respect to such misconduct, and its effect upon the. defendant’s business.

A literal construction of a paid of the language employed Tpy Wetmore might possibly be, that he was aware of the use to which Brooks designed' to put the premises. _ He said if he could let them for a respectable business “he would have done so.”But, taking the whole declaration together, it is entirely evident that he meant, that if he" could then let the premises for any thing else he would do so; for he said, “ if I could let,” &c., referring of course to the present and not to the past.

At the time Brooks fitted up the basement, there was nothing to awaken a suspicion that it was to be used for an improper purpose. It was fitted up as a bar and restaurant; and neither. Wetmore nor the defendant could suppose that Brooks intended to allow the premises to be used for purposes. of prostitution. Bor was there any fact or circumstance shown which was calculated to apprise Wetmore, or from which it could be inferred that he knew at the time of letting to Brooks that they would be used for an improper and injurious purpose. Therefore, to justify a verdict for the defendant, the declaration testified to must be taken to be of itself sufficient evidence of such knowledge in Wetmore. I am not willing to give it such weight. It is, in my judgment, too loose, and too uncertain as to its meaning, to justify, without corroboration or support, a conviction of Wet-more of being a party to the designs of Brooks.

I am, therefore, of the opinion that there was not sufficient evidence to sustain the defence, and that the direction to find a verdict for the plaintiff was correct.

The judgment should he affirmed.

McCunn, J.

(concurring). In effect, this is an action of. covenant for a quarter’s rent, alleged to he due on the 1st of August, 1862. The defense interposed is, that by consent and connivance of the landlord the basement of the house in question was converted into a place of prostitution, and that, by reason thereof, the appellant (lessee) was obstructed and defeated in his business ; and that, in consequence, and before the rent in controversy, or any portion of it, accrued due, he abandoned the premises. In other words, the answer sets up a plea of eviction.

Apart from any special covenant, a demise imports, ex vi termini, a warranty of peaceable possession, and a proper plea of eviction is always a sufficient answer to an action for rent, even on a lease under seal. The question is, was there, in the present instance, an exaction, in the legal sense of the word ? Anciently, nothing short of an actual expulsion operated an eviction; but, in modern times, the rule has been liberalized in favor of the tenant; and now any intentional and injurious interference by the landlord with the beneficial enjoyment of the premises will discharge the tenant from his obligation for the rent. The interruption, however, must be the work of the landlord, and he is not responsible for the misconduct of third parties. The defense, in this case, brings on the point, whether the landlord be. implicated in the establishment or continuance of a bawdy-house in the basement of the demised premises. If he is not instrumental either in the creation or continuance of the nuisance, the plea of eviction is without support (Gilhooly v. Washington, 4 N. Y.). A mere omission on his part to abate the nuisance has never been held an answer to an action for rent (Gilhooly v. Washington, supra ; Mortimer v. Brumer, 6 Bosw., 653; Ogilvie v. Hull, 5 Hill, 52).

An eviction, xvhether physical or moral, necessarily implies some affirmative misconduct on the part of the landlord (Cohen v. Dupont, 1 Sand., 260; Cram v. Dressev, 2 Sand., 120; and such is the doctrine even in Pendleton v. Dyelt, 8 Cow., 727).

How, in the present case, we see no evidence whatever of such misconduct. The utmost urged against the plaintiffs assignor, even in the defendant’s testimony, is that, informed of the nuisance, he neglected to abate it.

Of evidence of assent to the ‘ nuisance, if any, there is not enough to raise a reasonable presumption of the fact.

Hence, the case exhibits nothing that should have been submitted to the jury; and the Court did not err in directing a verdict for the plaintiff for the above reason. I concur in sustaining the judgment below.  