
    John Randall v. Samuel Alburtis, Jr.
    A rofusal, by a landlord occupying promises in conjunction •with bis tenant, to permit an under-tenant of tbo tenant to occupy llie premises demised, is an eviction by the landlord, and will prevent bis recovery in an action against tlic tenant for tbe rent.
    But tbe mere entry by the landlord upon his tenant's premises, ■unaccompanied by any attempt to exclude tbe tenant therefrom, does not constitute an eviction.
    Appeal by plaintiff from a judgment of tbe Fourth District Court. This was an action to recover rent. Tbe plaintiff and tbe defendant occupied together tbe store No. 7 Broad street — ■ the defendant biting tbe front part of it from tbe plaintiff. A partition, running across tbe middle of tbe store, separated the shops of tbe plaintiff and the defendant, both being occupied as paint shops. Tbe action was brought for tbe rent due for tbe quarter ending 1st November, 1856. The evidence showed that tbe defendant bad left tbe demised premises some time prior to tbe expiration of tbe quarter; that after be bad left them, tbo plaintiff made some use of them, and claimed an equal right to use tbem with the defendant; that the defendant, after having left-them, leased them to one Jacob Fauenbecker, who was a boot and shoemaker, but that the plaintiff refused to allow him to occupy the premises for anything but a paint-shop. The justice rendered j udgment for the defendant, and the plaintiff appealed.
    
      0. Patterson, for the appellant.
    To constitute an eviction, thé landlord must forcibly usurp and maintain possession of the demised premises. His mere entry therein is a trespass merely Ogilvie v. Ilall, 5 Hill, 52; Bushnell v. Lechmere, 1 Lord Raymond, 869; Hunt v. Cope, 1 Oowp. 242; Lansing v. Van Ais-iyne, 2 Wend. 561.
    
      W. B. Winterton, for the respondent.
    An eviction consists in taking from the tenant some part of the demised premises of which he was in possession. Etheridge v. Osborn, 12 Wend. 529. A physical eviction or expulsion is not necessary. It is sufficient for the tenant to prove' that there was an interference with or disturbance of his beneficial enjoyment of the demised premises by the landlord, intentionally committed and injurious in its character. Dyelt v. Pendleton, 8 Cow. 727; Lewis v. Iayn, 4 Wend. 426; Ogilvie v. Hall, 5 Hill, 52; Cohen v. Dupont, 1 Sand. S. O. B..-260, per Sandford, J.; Duchy v. Frantzlcee, 1 E. D. Smith, 52, per Ingraham, F. J.; Upton v. Townend, Same v. Greenlees, 33 Eng. L. & Eq. R. 212. An eviction from a part of the demised premises discharges from the payment of the whole rent. Lewis v. Payn, 4 Wend. 426; Lawrence v. French, 25 Wend. 444; Christopher v. Austen, 1 Kern. 216; Taylor’s Land, h Ten., p. 200, §§ 247, 379, 380.
   INGRAiiam, First Judge. —

From all the evidence in the case, it is apparent that the plaintiff and defendant, in the occupation of the store, had a joint occupation rather than a divided one. The testimony shows that both of them wore at different times in different parts of the premises, according to their convenience.

The fact, then, of plaintiff’s being in the front part of the store (wbiob was tbe part nominally rented to tbe defendant) was not sufficient to show an eviction. He did not exclude, or attempt to exclude tbe defendant, but merely claimed a right witb him in tbe store. At best, be was only a trespasser, and where that is tbe case, and a remedy exists for tbe trespass, the-law does not favor calling it an eviction.-

But although by itself such occupation jointly witb tbe defendant is not sufficient proof of an eviction, yet taken in connection witb tbe exclusion .of the, defendant’s tenant, and tbe prevention of bis occupation, I think, was enough to warrant tbe justice in finding that tbe plaintiff had resumed tbe possession ami determined to exclude tbe defendant’s tenant from the premises. Such an interference, under the cases, is an eviction. See Burn v. Phelps, 1 Starkie, N. P. R. 94, and Lawrence v. French, 25 Wend. 443.

There is a distinction between an interference by tbe landlord who sues for the rent, and by a landlord who interferes witb a sub-tenant, owing rent to an intermediate landlord. In the latter case it is not an eviction. Lawrence v. French.

Tbe plaintiff had no right to dictate, under tbe original letting to bis tenant, what business should be pursued therein. It formed no part of the agreement, and, without such reservation, the tenant bad a right to carry on what business he thought proper.

At any rate, the question was one for tbe court below, and tbe finding is conclusive.

Judgment affirmed.  