
    John S. Forster, Resp’t, v. David Eberle, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed March 6, 1894.)
    
    Landlord and tenant—Board of health.
    A tenant cannot, upon receiving notice from the board of health requiring compliance with § 53 of the Sanitary Code, voluntarily abandon the premises and thereby avoid the payment of rent.
    Appeal from a judgment of the justice of the sixth district court, rendered in favor ot‘ plaintiff for $88 and $17 costs. The action was for rent and the defence was dispossession by order of the board of health. ■
   The Court.

The plaintiff leased to defendant for one year from May 1st, 1891 the stable in the rear of 251 and 253 Hudson street in this city, “to be occupied as a stable and not otherwise.” On August 20th, 1891 defendant was served with a notice from the board of health requiring him in alleged conformity with the provisions of the Sanitary Code “to alter, repair, cleanse and improve the premises” as follows, viz: “Thatall horses be removed from the premises and the stabling of horses there at be discontinued,” and notifying him that any application for necessary extension of time or for suspension of any part of the requirements, must be made to the department within three days from receipt of the notice. The defendant on August 27th, 1891, discontinued the use of the premises, and resists the claims for rent accruing after that date. The plaintiff recovered the rent unpaid for the whole term. The defendant proved at the trial the provisions of the Sanitary Code, § 53, “That no cattle, swine, or sheep, geese, goats, or horses, shall be yarded within or adjacent to the built up portions of the city of New York, without the permit of this department, or otherwise than according to its provisions.” The tenant made no application to the board of health for an-extension of time or suspension of the requirements of the notice.

There was no eviction by the landlord and no final order of the board of health after the hearing of the application for suspension which the tenant was entitled to request under the notice. The tenant voluntarily abandoned the premises without contest. If he is therefore relieved from the payment of rent any lessee by collusively procuring such a notice to be issued and by immediately complying with it might terminate his lease. And it does not appear that there was any violation of any provision of the Sanitary Code. The “yarding” of cattle, swibe, sheep, geese, goats, or horses, is a wholly different thing from the stabling of horses in a properly kept stable. If the lessee kept the horse in the yard instead of the stable, or failed to keep the stable clean so as to authorize the interference of the board that is his fault. But the whole case fails to disclose facts which gave the board of health jurisdiction under the section in question.

Judgment affirmed with costs.  