
    ANNA C. PRATT, PLAINTIFF-APPELLEE, v. ELMER T. BLEY, DEFENDANT-APPELLANT.
    Submitted January 29, 1932
    Decided April 8, 1932.
    Before Justices Campbell, Lloyd and Bodine.
    For the plaintiff-appellee, Edivard R. McGlynn.
    
    For the defendant-appellant, Hugo Woerner.
    
   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff. The action was brought to recover the rent reserved in a written lease. The facts appear to be that the plaintiff’s predecessor in title owned certain lands and premises in Kearny, and leased them to the defendant. The lease contained a covenant that the landlord would construct a building having an area of two thousand four hundred square feet. Such building, however, was not constructed, but one having an area of two thousand and thirty-five square feet was built and occupied by the defendant, who paid for some years the rent reserved, when, as he claimed, he suddenly discovered the discrepancy and stopped payment of rent.

• The sole defense to the present action was that there was a constructive eviction. How this can be when the defendant was never possessed of more than two thousand and thirty-five square feet of space we cannot see. Since the defendant could have determined by simple measurements whether the building complied with his contract that circumstance offsets, to our mind, any credit that might otherwise attach to the testimony of the sudden discovery of the discrepancy after years of occupancy. The settled facts seems to us to indicate an acceptance of the building as built. This question was submitted in the brief and although not essential to the decision, we pass upon it.

The other points deserve no mention.

The judgment is affirmed, with -costs.  