
    George C. Carter, Resp’t, v. John H. Byron, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    1. Landlord and tenant—Trespass—When landlord liable.
    The plaintiff hired of the defendant certain premises, 50x105 feet, for a year. During' the term, the defendant, under protest of the plaintiff, erected a fence in front of the premises, in place of the old fence, but cutting off 17x105 feet of the lot leased to the plaintiff. The premises were leased for a laundry, and the cutting off the land destroyed its efficiency. Held, that the trespass was willful and done in defiance of the plaintiff, and that the verdict for the plaintiff was warranted.
    S. Same—Agreement—Damages.
    When proceedings were taken to dispossess for non-payment of rent, he paid the same under an agreement with the defendant's agent, that the only way to do was to pay the rent and proceed against the defendant for the wrong done. Held, that the plaintiff is not bound to vacate the premises, but can stay, relying upon his agreement, and recover damages if the agreement is broken.
    Á Same—Eviction—When suspends rent.
    A wrongful eviction from part of the premises suspends the rent. There can be no apportionment. The whole rent is suspended until possession is restored.
    Motion for re-argument. The former opinion will be found in 17 N. Y. State Rep., 700.
    
      P. L. McOlellan, for app’lt; Stanford & SUlwell, for resp’t.
   Barnard, P. J.

The motion for re-argument is based' upon an allegation that the opinion was based upon a fact not proven. The complaint Was based upon a lease of land by defendant to plaintiff, and a forcible taking of a portion thereof, after the plaintiff had entered into possession. The-testimony of plaintiff upon the trial, is as follows: “ I continued in possession of the whole ■ premises from April 1st, until May 17, 1887. On that day 17 by 105 feet was-taken away by running a fence through my yard from the street to the rear line.” The defendant “ said the premises-belonged to him and he could do as he liked.” The opinion therefore, correctly stated that the evidence shows an ouster as to 17 feet front and 105 feet deep..

The plaintiff declined to pay the rent by reason of this eviction, and upon proceedings being instituted against, him, he was advised to pay the whole rent so as to continue in possession of the remnant of the leased premises, left to him, upon which the house stood. The evidence is as-follows: “I was advised legally that I must pay the rent-in order to continue in possession of the premises, and this-was in the presence of Mr. McClellan.

A. “Yes, sir; and Mr. McClellan says that is the only way you can do, I had to pay my rent and proceed against Mr. Byron.” Mr. Byron had treated me wrongfully. Mr. McClellan was the defendant’s agent in respect to the property.”

The opinion, therefore, correctly states the argument as to the payment of the rent in order to restore possession, and the reservation of the right of action for the wrong-done was an agreement between the parties.

The motion should, therefore, be denied, with ten dollars costs.

Pratt, J.,  