
    Ogilvie vs. Hull & Hull.
    To operate a suspension or extinguishment of rent on the ground of an eviction, there must be an entry and expulsion of the tenant by the landlord, or some de. liberate interference on his part with the possession depriving the tenant of the beneficial enjoyment of the demised premises. Per Nelson, Ch. J.
    Accordingly, where the landlord had committed acts tending to prevent, persons from applying to the tenant for underletting, e. g. by ottering to lease and advertising for that purpose; held, no bar to an action for the rent, though the premises re. mained unoccupied.
    The cases of Dyett v. Pendleton, (8 Cowen’s Rep. 727,) and Burns v. Phelps, (1 Stark. Rep. 94,) limited and explained.
    Error to the New-York common pleas, where Ogilvie sued W. & J. C. Hull, in debt, to recover the last year’s rent claimed to be due upon a lease of a store in the city of New-York. The lease was executed by one Brantingham to the defendants for the term of seven years from May 1st, 1834, and contained a covenant by the lessees to pay an annual rent of $700. In the month of March, 1835, the lease was assigned to the plaintiff, and he took a conveyance in fee of the demised premises.
    The defence was, an eviction by the plaintiff. The evidence in respect to the eviction was substantially as follows: During the years ending in 1838, 1839 and 1840, one Utter occupied the premises as tenant of the defendants; and, on the 1st of February, 1840, the plaintiff called on Utter to ascertain if he desired to continue in the occupation of the store for another year. Utter informed him that he did, and, in reply to an enquiry of the plaintiff, said he was willing to pay $600 rent. The plaintiff refused this proposition, and soon after posted a bill on the store announcing that it was “ to let.” Some three weeks afterwards the plaintiff again called on Utter, and offered to let him have the store for $700 and taxes. Utter was dissatisfied with the price, and the negotiation between him and the plaintiff ceased. About a week before Utter’s term expired, the plaintiff told him that, on looking over his papers he found the defendants’ lease did not expire till May, 1841, and that he had therefore nothing to do with the store. This information was immediately communicated by Utter to a clerk of the defendants, but not at the plaintiff’s request. It further appeared that, in February, 1839, Utter was told by one of the defendants’ clerks that the lease in question expired on the 1st of May, 1840 ; and from such information, in connection with the plaintiff’s subsequent acts, Utter was induced to believe that the plaintiff had control of the premises, and therefore did not apply to the defendants for a new lease. Before he was advised of his mistake he had rented another store. It did not appear that the defendants attempted to rent the store for the last year, or that they took any interest in the matter. The court, in charging the jury, submitted to them whether the acts of the plaintiff, between February and May, 1840, did not amount to a constructive eviction. They remarked that, if the plaintiff entered upon the premises with intent to exercise his control as landlord, and had done so, it might amount to a constructive eviction, although the tenant in possession held under the defendants and had paid rent to them up to the 1st of May. They added, that, if the landlord interfered with the defendants’ tenant, or the demised premises, in such a manner as to cause the tenant to move away, and by reason thereof the premises remained vacant for the following year, it would amount to a constructive eviction. The plaintiff’s counsel excepted to the charge, and the jury rendered a verdict for the defendants. After judgment, the plaintiff sued out a writ of error.
    
      J. M. Martin, for the plaintiff in error.
    
      W. C. Wetmore, for the defendant in error.
   By the Court, Nelson, Ch. J.

No case, I apprehend, has carried the doctrine of constructive eviction to the extent laid down by the court below. The most that can be made out of the facts are these: The landlord, (wilfully, if you please, though it was evidently through mistake,) undertook to let the premises himself, before the expiration of the lease to the defendants and at the usual time for leasing in the city, by negotiating with the sub-tenant; and, on failing to agree with him, posted a bill on the premises, which continued till some short time before the year expired, when he abandoned all further interference. There was no interference by the landlord or by any one claiming under him, with the actual use or occupation of the premises. The lessees had the undisturbed possession by their sub-tenant, until his term expired, and they might have had it till the expiration of their lease. The only ground for saying there has been an eviction, is the possible injury to the defendants, arising out of the mistaken or ill-advised interference of tire plaintiff in the several attempts to lease the premises himself. This may, indirectly and remotely, have embarrassed the letting by the defendants, though it does not appear in the case that they interested themselves in any manner with a view to re-letting, or that they complained of or protested against the conduct of the plaintiff in the matter. They appear to have been perfectly passive and silent throughout.

Now, 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 cases are collected and well considered by Mr. Justice Kennedy in Bennett v. Bittle and another, (4 Rawle, 339,) and they establish the proposition stated beyond all manner of doubt. It would be a work of supererogation to go over them again, after the full and satisfactory review there tallen. Dyett v. Pendleton, (8 Cowen, 727,) decided in the court for the correction of errors, shows only an application of the doctrine to an extreme case. That adjudication is not to be regarded as introducing a new principle, nor as establishing an exception to the general rule. There, the grossly lewd and immoral conduct of the landlord in the adjoining premises, (another part of the same dwelling,) was so offensive to common decency, and accompanied with such riotous and outrageous disturbances, as effectually to destroy the quiet occupation and beneficial enjoyment of the demised tenement, and render it uninhabitable by respectable people. This was considered such a disturbance and destruction of the reasonable use and occupation of the premises, as amounted to a virtual expulsion of the tenant.

I admit, a wrong may have been committed in this case against the lessees, by interfering with the right of renting the demised premises, which belonged exclusively to themselves; but I am unable to see how it can be said, within any rule of law that has ever been established, that here has been such air invasion of their possession and enjoyment as will bar an action for .the rent.. Slander of their title by the landlord would embarrass and prejudice the letting; but no one would think of attaching to it the consequences contended for in this case. The law has provided a different remedy. So of a trespass committed upon the premises by the landlord. (Bennett v. Bittle and another, 4 Rawle, 339; Lawrence v. French, 25 Wend. 443, 445.)

The case of Burns v. Phelps, (1 Stark. R. 94,) is much relied on by the defendants ; but the decision there made must be confined to the facts upon which it was founded. It might have applied here, if the sub-tenant had quit during his term and left the store vacant, in consequence of any threats or improper interference of the landlord. The latter would not be permitted to recover rent from his lessees for the remaining unexpired term of the sub-tenant, whom he had virtually expelled from the premises. In this case there was no attempt to disturb him during his term. He left at the expiration of it because he could not agree about the rent for the next year. He never sought to lease again of the lessees, nor did they endeavor to lease to him. They must have known, or should have known, that they had the control of the store; and, for aught that appears in the case, they might have rented to Utter for the ensuing year had they taken any steps for that purpose. The failure is owing more to their own remissness and neglect, than to the interference of the plaintiff.

Judgment reversed. 
      
      
         Further, as to what will produce a suspension, apportionment or extinguishment of rent, see, in addition to the cases cited by the chief justice, Lewis v. Payn, (4 Wend. 423 ;) Watts v. Coffin, (11 Johns. 495 ;) Hallett v. Wylie, (3 id. 44;) Etheridge v. Osborn, (12 Wend. 529;) Wagner v. White, (4 Harr. & Johns. 564;) 1 Hilliard’s Abr. 162 et seq.; 2 Whart. Dig. 203 et seq., 4th ed.; 1 Lomax’s Dig. 564 et seq.; 3 Kent’s Comm. 463 to 471, 4th ed.
      
     