
    Sarah A. Barnum et al., App’lts, v. John Fitzpatrick, Resp’t.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed January 4, 1892.)
    
    1. Landlord and tenant—Eviction.
    Defendant having failed to comply with certain orders of the health department and building bureau in relation to repairs to the building he occupied, his landlords entered and made such repairs, tearing up a portion of the building. Defendant, however, did not surrender the lease and he and his subtenants remained in possession of other parts of the building. Jleld, that under these circumstances the acts of the landlords did not excuse him from paying rent for the premises.
    53. Evidence—Orders of health department.
    Copies of orders of the health department or of the building bureau are not of themselves, as a rule, evidence as against third parties.
    3. Same—Attorney’s letter.
    The contents of an attorney’s letter are not, except for certain limited purposes, as proving a demand and the like, admissible in evidence in his favor or that of his client unless they form a part of a series, a portion of which has been introduced in evidence, and without which those in evidence cannot be fully understood.
    Appeal taken by the landlords from a final order of the district court in the city of Hew York for the fifth judicial district, dismissing summary proceedings instituted by them for the possession of the premises 320 Stanton street, in the city of Hew York, for the non-payment of rent.
    
      Hatch & Warren, for app’lts; Frank Moss, for resp’t.
   Bookstaver, J.

On the 1st day of December, 1889, respondent Fitzpatrick leased from the appellants the premises known as 320 Stanton street, on the corner of Groerck, for a term of three years and four months from that date, at the rate of seventy dollars per month, payable in advance. Ho rent was paid on July 1, 1891, and on the 9th of that month this proceeding was instituted. The tenant interposed an answer denying that there was any rent due at that time, also denying that he was in possession of the premises after default in payment, and alleging that on or about the 22d May, 1891, the landlords entered the leased premises and required him to move therefrom, tore up a portion of the premises and demolished other portions. Subsequently this answer was amended by setting forth that the acts of the landlords, were wrongful and without the permission of the tenant, and were-done with the purpose of wrongfully withholding the possession of the premises from -the tenant and depriving him of the beneficial use and enjoyment of the same.

Upon the trial the tenant admitted that the sum of seventy dollars was due on the 1st July, 1891, under the terms of the-.•ease, that a demand for ¡the rent had been made and not complied, with, and that he had not surrendered possession of the property; and it was shown that he and his undertenants were in actual possession of a part of the same when the proceedings were commenced and at the time of the trial. It further appears from the evidence that comrnencing with about the 1st February, 1891, and continuing for some time thereafter, several orders from the health, department and from the building bureau were served upon the tenant, requiring repairs and changes to be made on the premises, but the nature and extent of such requirements does not appear,, as the notices were not admitted in evidence. On April 28cl, according to a letter put in evidence by the tenant, he was notified on behalf of the landlords that if he would surrender the lease they would not hold him liable to comply with the orders-' of the two departments, but that if by the" 25th of that month he had not complied with the order of the bureau of buildings sent to him, and such other orders as had been served upon him, they would proceed to perform the work and hold him liable for the expense. On the day last named, the tenant had done nothing towards complying with the orders, and then, and upon the trial,, claimed that he was not bound to comply with the orders of the building department, as he had not stipulated to do so in the lease.. The landlords then requested permission to go upon the premises-to make necessary repairs, which was at first refused, but we infer from the testimony that this refusal was subsequently withdrawn,, as the landlords’ agents did go upon the premises apparently with the permission of the tenant. On the 4th of May, the tenant's-attorney wrote a letter in which he stated that the tenant would, insist that the work which was to be done should be done in such a manner as to avoid injuring his property, and as quickly as possible, and that he should claim he would not be obliged to pay any rent during the time he was unable to fully use the premise?.. Thereafter the landlords, by their agents, tore úp a portion of the-rear floor, took out some of the beams, replacing them with new ones, and tore down a rear building forming a part of the demised, premises which had before been used as a stable, and left the materials in the yard and in front of the premises, in consequence of which the tenant testified he could not continue his business as a saloon keeper. It was also claimed on behalf of the tenant that the water pipes were cut off from the upper floors, preventing the sub-tenants from using the water; but on behalf of the landlords-it was insisted that the deficiency in the supply of water was caused by a leakage in the pipes.

There can be no doubt that under the law as frequently declared in this state, these acts on the part of the landlords, whether done under the orders of higher authority or not, so seriously affected the beneficial use of the premises as would have justified the tenant in removing from them as on an eviction, and had he done so he would have been fully justified. Indeed the landlol'ds foresaw that the repairs were of such a nature as would seriousjy interfere with the use of the premises, and offered to relieve the tenant from all liability if he would surrender the lease. This he persistently declined to do, and the question is whether, under such circumstances, he can insist upon remaining in possession of a portion of the premises while temporarily deprived of the beneficial use of other portions, without paying the whole rent, or at least some rent for that part used by him.

By the terms of the lease the tenant covenanted to take good care of the house and its fixtures, suffer no waste, and also, at his own expense, make all repairs required to the plumbing work, pipes, furnace, range and fixtures belonging thereto ; and that, he should not call upon the landlords for any disbursements or outlay during the term; and to surrender the demised premises in good order and condition, damage by the elements excepted, at the expiration of the termj and he further covenanted to promptly execute and fulfil all the ordinances of the city corporation applicable to the premises, and all orders and requirements imposed by the board of health and the police department for the correction, prevention and abatement of nuisances and other grievances.

While the exact nature of the orders of the board of health and of the building bureau does not appear from the return, yet it is clear, that whatever they were, the tenant refused compliance with, them. And there is no evidence in the case from which either the court below or this court can determine whether he was justified in so doing, or whether or not the orders were reasonable. In the absence of such evidence we must assume that public officers would only do their duty and require that to be done which the circumstances of the case demanded The tenant in taking the premises took them as they stood, and was bound to surrender them in as good condition as he received them, damages by the elements excepted; and he was not to call upon the landlords for any outlay or disbursements during the term. Whatever these orders were, the tenant was under covenant to perform them so far as the health department at least was concerned, which he refused to do.

It is the duty of a tenant to make all repairs to a building to keep it in a tenantable condition, and a landlord is not required to make them unless there is an express covenant on his part so> to do, and if for any reason, therefore, the building becomes out of repair to such a degree that it cannot be permitted to remain in that condition, it is a breach of the covenant by the tenant. Suydam v. Jackson, 54 N. Y., 450. It is not clear from the return what was the cause of the premises in question falling into such a state as to call for the interference of the officers charged with the safety of buildings; it certainly does not appear that it was through any fault or negligence on the part of the landlords ; it may have been through the fault of the tenant (although that does not appear), or the result of gradual decay, and that to such an extent that possibly the tenant was not bound to do what was required to make the building safe.

The tenant having refused to comply with the orders served upon him, it became necessary for the landlords to do it themselves, or if they neglected this the building bureau had the. right under the law to enter upon the premises and do- what was required, and charge it against the property, which would doubtless have been at an increased expense to whoever was bound to pay for it. Under such circumstances we think the landlords had a right to enter upon the premises to do what repairs were necessary, and that such entering and making repairs did not amount to an eviction. Even the tearing down of a building pursuant to a lawful order or mandate of a public officer does not amount to this. Connor v. Bernheimer, 6 Daly, 295. In that case it was said, “ Where there is no covenant on the part of the landlord to repair or build, and none is implied in a covenant of quiet enjoyment, Brown v. Quilter, Amb., 621, the tenant takes the premises as they are, and if, in consequence of natural decay, * '* * it becomes indispensable, as a public duty for the public safety, to take down the building, to prevent it falling down, there is no violation of the covenant for quiet enjoyment, * * * the taking down of a building, as an act of necessity, to prevent its falling down, either by the public authorities, or in obedience to their orders, is not an eviction or disturbance of the possession by title paramount, there being no question of title involved in such an act.” If the total destruction of a building under such circumstances does not amount to an eviction, then the entering upon premises and making repairs intended to render them safe cannot.

It is doubted whether the landlords’ entry in this case amounted to an unjustifiable trespass; but even if it did, a mere trespass would not relieve the tenant from the payment of rent. This was expressly held in Edgerton v. Page, 20 N. Y., 281. The court, by Grover, J., said, “ I cannot see upon what principle the landlord should be absolutely barred from a" recovery of rent, when his wrongful acts stop short of depriving the tenant of any portion of the premises. The injury inflicted may be to an extent much larger than the whole rent, or it may be of a trifling character. In all the cases where it has been held that the rent was extinguished or suspended, the tenant has been deprived, in whole or in part, of the possession by the wrongful act of the landlord, either actually or constructivelj-.

“ There is no authority extending the rule beyond this class of cases. It would be grossly unjust to permit a tenant to continue in the possession of the premises, and shield himself from the payment of rent by reason of the wrongful acts of the landlord impairing the value of the use of the premises to a much smaller amount than the rent. This must be the result of the rule claimed by the defendant. The moment that it is conceded that the injury must be equal to the amount of the rent, the rule is destroyed. It would then only be recoupment to the extent of the injury.”

In the Home Life Ins. Co. v. Sherman, 46 N. Y., 370, the court, after referring to those cases where there was an injury to the beneficial use of premises sufficient to constitute a constructive eviction, say, “ But the tenant must quit possession in consequence of such, interference. * * * This distinction will reconcile the authorities, which otherwise may seem conflicting. The rule to be gathered from all the authorities, and which accords with good sense, is that a person cannot remain in possession of premises and still claim he has been turned out; nor, when a judgment of a competent court has determined that he shall deliver possession to a particular person, need he wait to be forcibly ejected.” See also Boreel v. Lawton, 90 N. Y., 293; Kelly v. Miles, 48 Hun, 6; 15 St. Rep., 319; Academy, etc., v. Hackett, 2 Hilt., 217. And this rule was followed by this court in Koehler v. Scheider, 15 Daly, 198; 23 St. Rep., 68.

In the case under consideration the tenant admitted on the trial that he was still in possession of the premises, or rather that he had not surrendered possession, which amounts to the same thing; also that he had under protest paid the rent for the month of June after the landlords had done much of the work, and we do not think the protest can avail him in such a proceeding as this. It was also shown that his sub-tenants were still in possession of the upper floors, and it was not shown that the landlords were in the actual final occupation of any part of the premises, or that the tenant was excluded finally from any part of them, and this we think was essential to the tenant’s defense even under the authorities relied on by him.

The case of Christopher v. Austin, 11 N. Y., 216, was decided on the strength of Dyett v. Pendleton, 8 Cow., 731. In the former case the exact circumstances are not stated, except that the landlord entered and actually evicted the tenant from a part of the premises, and Icept him out during the whole term, and that the tenant occupied the remaining portion. The opinion quotes from Dyett v. Pendleton, supra, “ that there is a great principle that a tenant shall not be required to pay rent even for the part of the premises which he retains, if he have been evicted from the other part by the landlord,” and this is clearly obiter, for in that case, which is the leading one on constructive eviction, the tenant left the rooms leased to him on account of the disorderly conduct of the landlord and his tenant in adjoining apartments, rendering it unsafe for the morals of his family to remain longer. The true reasoning in that case is that an eviction by the landlord destroys the consideration for which rent is to be paid, and where there is a total failure of consideration, the contract is not binding, and that this eviction may be brought about by moral as well as physical causes. While Christopher v. Austin has not been expressly overruled by the authorities we have before cited, it certainly can only be regarded as authority for holding that no rent need be paid when the landlord has excluded the tenant from a part of the premises, and used such part for his own purposes.

And this is in harmony with Lawrence v. French, 25 Wend., 443, where Judge Nelson says: “A mere trespass by the lessor will not suspend the rent, as where he entered and destroyed a building (Cowp., 242); but where he railed off part of the premises, the act had that effect (3 Camp., 513).” Carter v. Byron, 49 Hun, 299; 17 St. Rep., 700; People v. Gedney, 10 Hun, 151; Buffalo Stone & Cement Co. v. Radsky, 14 St. Rep., 82, all involved an actual final occupation by the landlord of a part of the demised premises to the exclusion of the tenant. Indeed, the latter case is distinguished by the court from Edgerton v. Page and Boreel v. Lawton, supra, on the very ground of actual and final exclusion. This we have before shown was not established in this case.

In summary proceedings by a landlord against a tenant to recover possession of the demised premises after default in the payment of rent, a counterclaim cannot be pleaded. The only answer he can make is a general denial, or a denial of specific allegations of the petition. Under denial of the averment that rent is due and that the tenant has made default in the payment thereof, he may prove payment or that for any reason no rent is due. Durant Land Improvement Co. v. The East River Electric Light Co., 15 Daly, 337; 25 St. Rep., 928; Code, § 2244. It is not even a sufficient answer to the proceeding that the full amount of the stipulated rent is not payable. If any rent is due, the landlord is entitled to a final order in his favor. Jarvis vs. Driggs, 69 N. Y., 147.

It therefore follows that the judgment dismissing the proceeding in this case must be reversed.

Having arrived at this conclusion, it is unnecessary to examine particularly the various exceptions to the admission or exclusion of evidence. It may be said, however, that copies of orders of the health department or the building bureau are not of themselves, as a rule, evidence as against third parties, and that the contents of a letter written by an attorney are not, except for certain limited purposes, as proving a demand and the like, admissible in evidence in his favor unless they form a part of a series a portion of which has been introduced in evidence, and without which those in evidence cannot be fully understood.

Judgment reversed.

Bischoff, J., concurs.  