
    John H. Mortimer, Plaintiff, v. William, Samuel and John J. Brunner, Defendants.
    1. “ Where the owner of a store rents all of it above the first story and basement, without any covenant in the lease, except the usual one for quiet enjoyment, and subsequently leases the first story and basement for a business commonly prosecuted in that part of buildings used as stores, he does not thereby impair his claim against the first lessee for the stipulated rent, although his business may be indirectly prejudiced by the business of the second lessee.
    2. Where there is no eviction of a lessee, nor any actual interference with his enjoyment of the demised premises, and he continues to enjoy the whole premises, he cannot be excused from the payment of rent, merely on the ground that other parts of a building containing the demised premises, are so used by a lessee thereof, as to affect indirectly and injuriously the business prosecuted in the demised premises.
    3. Any interference by the second lessee, in the enjoyment by the first lessee of the premises demised to the latter, to which the lessor is not a party, will not subject the lessor to an action by the first lessee, nor impair the lessor’s right to recover the whole rent agreed to be paid by the first lessee.
    (Before Hoffman and Robertson, J. J.)
    Heard, June 15th;
    decided, June 16th, 1860.
    This action comes before the Court on questions of law arising at the trial upon exceptions, there taken by the defendants, to refusals of the Court to charge as requested, and also to the charge made.
    
      The suit was tried before Bosworth, Ch. J., and a jury, on the 13th of March, 1860. It is brought to recover $1,500, being one-quarter’s rent, falling due August 1, 1858, for the 2d, 3d, 4th, and 5th lofts or stories of the store Ho. 231 Broadway, which the plaintiff by an indenture of lease had demised to the defendants for a term of years then unexpired.
    The answer of the defendants avers, in substance, that, in June, 1858, the plaintiff rented the first story and basement of said premises to a Mr. Tivy for a restaurant, and suffered pipes to be erected upon said building to carry off the heat, smoke, &c., and permitted cooking to be carried on therein, &c., which was a nuisance to the defendants, and also deprived them of the use of the Croton water, and the water-closets connected with the deised premises, whereby, before the said rent fell due, they had sustained damages to the amount of $1,500.
    These facts are pleaded both as a bar to the recovery of rent as amounting to an eviction, and also as entitling the defendants to damages, by way of recoupment.
    The lease from the plaintiff to the defendants, demised to them “ all the second, third, fourth and fifth stories or lofts, being four floors from the top, and the hall entrance thereto, of the building known as number 231 Broadway, in the city of Hew York.” The lease did not specify any use for which the demised premises were leased; and it contained no covenant on the part of the lessor, except one in the usual form, for quiet enjoyment. The lease to Tivy of the first floor and basement, did not in terms grant to him any right in conflict with any provision in the lease to the defendants, and the restaurant business of Tivy was not alleged to be different, or to be conducted differently from that of other restaurant establishments, in Broadway.
    The testimony is sufficiently stated in the opinion of the Court.
    At the close of the testimony, the defendants’ counsel requested the Judge to charge:
    • 1st. That if the jury believe that the plaintiff rented the first floor and basement for the purpose of an eating and drinking place, and that such business is carried on by the knowledge and permission of the plaintiff, and that such business was injurious to the business or stock of, or the occupancy of that portion of the premises hired by defendants, it amounts in law to an interference with the beneficial enjoyment of those premises, and the plaintiff cannot recover.
    2d. That if the jury believe that the defendants have been injured by a depreciation of their stock of goods by the use of the premises occupied by Tivy, they are entitled to an offset against the plaintiff to the amount of such damage.
    3d. If the light or water which defendants were entitled to, and were in the enjoyment of, when plaintiff allowed Tivy to enter the first story, have been obstructed or interfered with by an act of Tivy, with the knowledge or permission of plaintiff, the plaintiff cannot recover.
    The Judge refused to charge either of said propositions; to each of which refusals the defendants’ counsel then and there excepted separately.
    The Court then charged the jury as follows:
    The plaintiff had a right to let the first floor and basement of the premises 231 Broadway, to be used for a restaurant and eating and drinking-house, such as the evidence shows the one in question to have been, after he had leased the remainder of the building to the defendants, and without their consent, and he is not liable to respond to them for any damages that they may have sustained thereby, nor for any injury thereby caused to the premises leased to them, nor for the loss in the use or enjoyment of said premises, thereby caused to the defendants; neither can the same be considered an eviction or in any manner defeat the plaintiff’s claim for rent.
    (To all of which propositions, the defendants duly and separately excepted.)
    But there is testimony tending to show that the plaintiff consented to the erection of the two pipes near the windows of the premises leased to the defendants after making the lease to them, and in the absence of rebutting or conflicting testimony, you prnust assume as an established fact that the plaintiff did consent to the erection of said pipes, and the defendants are entitled to a deduction from the rent, of the amount of damages that they have showed that they have thereby sustained.
    (To which ruling, the counsel for the plaintiff did then and there except.)
    
      The defendants have given evidence tending to show that their light was obstructed and their store darkened to some extent by those pipes, and that they were, by reason thereof, compelled to burn gas in the daytime in the back part of their store, to their damage, but have not proved any definite amount of damages sustained by them from that cause. Only nominal damages, therefore, can be allowed to the defendants.
    (To which last proposition, the defendants duly excepted.) Keither does the obstruction of the light by the plaintiff amount to an eviction, nor defeat the plaintiff’s right to recover rent from the defendants.
    (To all of which propositions, the defendants separately duly excepted.)
    You must, therefore, find that the plaintiff is entitled to recover the full amount of the rent and interest for the quarter for which this action is brought, to wit, the sum of $1,500, and interest thereon from the first day of August, 1858, less the sum of six cents for nominal damages sustained by the defendants by reason of the obstruction of their light.
    (To all of which, the defendants duly excepted.)
    Counsel for defendants then requested the Judge to charge the jury in reference to the loss of the Croton water, and that the same amounted to an eviction in case such loss arose from the acts of the plaintiff.
    To which the Court responded that there was no evidence that the plaintiff had interfered with their use of the Croton water, or had authorized any interference with it, and that it was not an element in this case, and declined to comply with such request.
    Whereupon the counsel for defendants excepted.
    Whereupon the jury, by the direction of the Court, found a verdict in favor of the plaintiff against the defendants for the sum of $1,670tVo, being the amount of the plaintiff’s claim less six cents damages allowed the defendants.
    (To all of which, the defendants excepted.)
    The Court then ordered the question of law arising at the trial to be heard in the first instance at the General Term, and the entry of judgment in the meantime to be suspended.
    
      
      S. Sanxay, for defendants.
    I. The Justice erred in his refusal to charge as requested; and, in fact, in each of the instances where defendants excepted.
    II. The Croton water was part of the demise for which the defendants were specifically required to make payment by the lease; and the loss of it amounted to an eviction. And an eviction of part of demised premises suspends the rent for the whole. (Christopher v. Austin, 1 Kern., 216.)
    III. The enjoyment of light, air, and quiet, as well as the premises in the condition in which they were when demised, were embraced in plaintiff’s covenant for quiet enjoyment; and any interference therewith by plaintiffs, or by their acts, was a breach of this covenant, and amounted to an eviction. It was not necessary that there should be a physical ouster. (Cohen v Dupont, 1 Sandf., 260; Whitbeck v. Cook, 15 J. R., 483.)
    And that there was such an interference is beyond dispute.
    IV. Damages were recoverable by defendatits by way of recoupment, for breach of the covenant of quiet enjoyment, even though for a mere easement pertaining to the demised premises. (Blair v. Claxton, 18 N. Y. R., 529.)
    The Croton water and water-closets were at least easements, if not parts of the demised premises themselves; and the plaintiff was bound to maintain them as they were demised, and not permit them to be destroyed, or rendered useless. (2 Hilliard’s Abr., 1.)
    V. The allowing to be used, or using by plaintiff, of the other part of the building, for purposes injurious to defendants, and their business, their comfort, or their enjoyment of the demise, was, per se, the erecting and creating of a nuisance.
    As to definition of nuisance, see Richardson’s Dictionary, “ Noy" (Bl. Com., book 4, ch. 13; Cowie v. Goodwin, 9 Carr. & Payne, 378; Jackson v. Eddy, 12 Miss., 209; Dyett v. Pendleton, 8 Cow., 727; Lewis v. Payn, 4 Wend., 423; Zule v. Zule, 24 id., 76; Westlake v. De Graw, 25 id., 669.)
    VI. If there was any doubt or question in respect to the acts of the plaintiff, or that they interfered with, or disturbed the defendants in their enjoyment of their demise, the Court should have submitted that question to the jury
    
      VII. If there were no dispute as to those questions, and by the evidence there seems to be none, the Court should have held: that they amounted to an eviction, and that the rent was wholly suspended within the case in 1 Kernan, 216; and as this case now comes before this General Term upon this question, it should now be decided that the defendants are entitled to judgment .upon it.
    
      E. W. Stoughton, for plaintiff
    I. The defendants have remained in the actual possession of the premises ever since the execution of said lease, and cannot, therefore, set up an eviction; by reason whereof the matters stated in their answer are immaterial, and, if true, would afford no defense in this action by way of counterclaim or otherwise. (Edgerton v. Page, 14 How. Pr. R., 116; affirmed by Court of Appeals; Cram, v. Dresser, 2 Sandf. S. C. R., 120; 12 Miss., 209.)
    II. The lease was executed under seal, and, therefore, as well as for other reasons, if the defendants had, for the cause stated, abandoned the premises, rent would still be recoverable upon the covenant to pay the same. (Gilhooley v. Washington, 4 Comst., 217.)
    III. The Court was right in refusing to instruct the jury as requested, and the charge instead of being open to exception by the defendants, assumed in their favor facts as to the obstruction of light by the plaintiff, not established by the evidence. Such obstruction, however, even if caused by him, did not amount to an eviction, or constitute even a breach of the covenant for quiet enjoyment. (Palmer v. Wetmore, 2 Sandf., 316.)
   By the Court—Hoffman, J.

The proposition mainly insisted on, in the defendants’ points is, that the tenant under a lease may remain in possession of the whole premises, and by showing a disturbance of, or injury to, the beneficial enjoyment, defeat an action for the rent; and this upon the ground that it is an eviction.

The propositions that there can be retention of demised premises, and an eviction, are logically and legally contradictory. The position has not the slightest warrant in law, principle, sense or decisions.

There are cases in which it has been deemed that there was an (eviction without a forcible ouster. But in such cases the tenant abandoned and the Court held, that acts of the landlord were so illegal and monstrous, as to be equivalent to absolute physical ouster.

Edgerton v. Page, (14 How., 116,) in the Common Pleas, has been affirmed in the Court of Appeals. (10 Abb. R., 119; 20 N. Y. R., 281.) It is distinctly and unanimously held, that there may be such acts of a landlord accompanied with abandonment by the tenant, as will amount to a virtual expulsion, and equally bar the recovery of rent.

In ease of an eviction from a portion of the premises, the law does not apportion the rent in favor of the wrongdoer. But the recovery of rent is not barred when the wrongful act stops short of depriving the tenant of the possession of any part of the premises. While the tenant remains in possession of the entire premises demised, his obligation to pay rent continues.

The charge of the Judge, by which he permitted damages to be allowed for the obstruction of the lights, in consequence of the erection of pipes near, but outside of the windows of the premises, is perhaps more liable to an objection from the plaintiff, than from the defendants. One of the defendants himself swears “ that if a restaurant is to be kept below, it was better for him to have the pipes there: the pipes were the only interference with the light.” Thus, if the letting for a restaurant was not an eviction, or a ground for a claim of damages, (as clearly it was not,) the putting up the pipes was a benefit.

In regard to the Croton water, it is apparent that the mere fact of letting the rest of the building for a restaurant did not involve the obstruction of the water by the plaintiff. And there is no evidence whatever of Ms personal interference with, or doing or assenting to any act which impaired the use of it.

The case is free from the slightest doubt.

Judgment must be entered for the plaintiff, with costs.

Judgment accordingly.  