
    MARY M. DAVIS, Plaintiff and Respondent, v. ELIZA A. BANKS, Defendant and Appellant.
    
      [Decided December 31, 1869.]
    It is no defense to an action to recover rent, either that the premises were unfit for occupancy or became out of repair after the commencement of the term.
    A tenant may recoup damages for a breach of the landlord’s covenant to repair.
    There being no covenant by the landlord to repair, a parol promise to repair, being without consideration, is void.
    Where a tenant, to secure the payment of the rent» gave a chattel mortgage upon furniture—held, no ground for an injunction to restrain a foreclosure of the mortgage, that the premises were out of repair, and therefore no rent due.
    Before Babboub, C.J., Monell and Fbeedman, JJ.
    This was an appeal from an order granting an injunction, made at Special Term, by Mr. Justice McOunn.
    The defendant, by indenture, leased to the plaintiff certain premises in this city, for one year from the 1st of May, 1869, at a rent payable monthly, in advance. The lease contained no covenant on the part of the defendant (the lessor) to repair, but a covenant on the part of the plaintiff (the tenant) to keep the interior of the house and the plumbing and gas-pipes in repair, at her own expense.
    To secure the payment of the rent, the plaintiff gave to the defendant a mortgage on certain household furniture.
    A month’s rent became due on the 1st day of June, and another month’s on the 1st day of July. Both remaining unpaid, the plaintiff, on the 6th of July, was dispossessed of the premises under the landlord and tenant act, and the defendant seized the mortgaged furniture, and was proceeding to sell, when this action was brought to restrain the sale and to recover damages.
    The allegations of the plaintiff were, that in taking possession of the house she discovered that it was not in a tenantable condition, although it had been expressly represented to be so by the defendant. That the defendant agreed to fix the premises, and make them suitable for domestic purposes. That, failing to do so, and finding the defendant did not intend to keep her promise, and the premises being utterly untenantable and unfit for occupancy, the plaintiff surrendered the possession.
    Upon these facts, an order was made, at Special Term, for an injunction restraining the foreclosure of the mortgage, from which the defendant has appealed.
    
      Mr. O. L. Stewart for appellant.
    The justice erred in granting a perpetual injunction in this action.
    His authority could extend no further than to grant a temporary injunction, to hold during the continuance of the action (Code, sec. 219, parts 1 and 2).
    One of the objects for which this action was brought, was to obtain a permanent injunction restraining the defendant from disposing of or interfering with the personal property conveyed by the chattel mortgage. Until the hearing and determination of the suit, therefore, and certainly before answer, the court had no right to grant a permanent injunction. Whether or not the relief prayed for in the complaint should be granted, is to be determined only by the decision of the action itself.
    Upon the facts, as submitted to the court below, the plaintiff was not entitled to any relief in the nature of an injunction.
    The acts sought to be restrained are not unlawful. The mortgage under which the defendant claimed the property sought to be sold is valid, was given upon valuable consideration, and vests the title to the property in the defendant.
    No litigation is necessary to ascertain how much is due the defendant under the mortgage. The terms of the lease demising the premises to secure the rent of which the mortgage was given, sufficiently determine that question.
    It does not appear by the complaint that the plaintiff is entitled to the final relief demanded.
    
      Upon her own showing, no cause of action exists in her favor against the defendant. She rented premises for which she agreed to pay $250 per month in advance. She occupied the premises for the period of two months and six days. The rent for one month only, that of May, 1869, was paid; the rent due on the 1st day of June, and that due on the 1st day of July, was not paid.
    It is no defense to the claim for rent that the premises were unfit for occupancy (Edgarton v. Page, 10 Abb. Pr., 119; Moffat v. Smith, 4 Comst., 126; Tibbits v. Percy and an., 24 Barb., 39).
    If the premises were out of repair, it was the fault of the plaintiff, for she had covenanted to keep them in repair at her own expense.
    The act of April 13, 1860, chap. 345, has no application to this case. Under any circumstances, it does not relieve against rent due up to the time of surrender.
    In this case the plaintiff was compelled by legal process to surrender the premises in question. And if there had been a voluntary surrender and acceptance, it would not release the tenant from payment, of' the rent previously due (McKenzie v. Farrell, 4 Bosw., 192).
    In Bloomer v. Merrill (1 Daly, 485), it was held that the statute of 1860, chap. 345, applies only to injuries occurring after lessee’s entry, and not to those existing at the time of the lease.
    
      Mr. John R. Dos Passos for respondent.
    It is alleged, and not denied, that on the 6th day of July, the date of their abandonment by plaintiff, the premises were “ utterly mtencmtdble and unfit for occupancy.” •
    This brings the case directly within the purview of the act of April, 1860, which provides in substance that the lessees of any building which shall without their fault be so injured by the elements “ or amry other cause,” as to be “ untenantable and unfit for occupancy,” shall not be liable to pay rent “ after such destruction or injury,” and may thereupon quit the same.
    
      Conceding that the defendant, under the circumstances stated, had any claim whatever against the plaintiff, it could not at the utmost exceed the sum of $250—the rent for the month of June.
    The plaintiff averred, that a few days after occupying the house she complained of its untenantable condition to defendant, who promised and agreed to put the same in good order, and that upon the faith of this agreement plaintiff continued to occupy the house.
    It is true that plaintiff covenanted to make all repairs, but that obligation only applied to ordmia/ry repairs, and not to such as are within the meaning of the statute of 1860 ; and therefore the law will not consider the subsequent agreement of defendant, by which the burden of making the repairs was transferred to the latter, a nudum pactum.
    
    The original lease was altered and modified by parol, and agreements of a similar character have frequently been upheld by the courts (Monroe v. Perkins, 1 Pickering, 298, and cases cited; Lattimore v. Horsen, 14 Johnson, 380; Dearborn v. Cross, 7 Cowen, 48; 1 Greenleaf on Evidence, page 439).
    The defendant was not justified in attempting to sell the property mentioned in the mortgage upon a summary notice of three days.
    
    The mortgage stipulates that upon default in the payment of the rent, the property shall be sold according to “ statute.”
    There being no statute in existence regulating sales of this character, it is insisted that the phraseology must have been used to indicate and embrace the law governing sales of personal property by execution, which provides for a notice of six days.
    The policy of the law does not favor the summary sale of a debtor’s property, and where the terms of the instrument are ambiguous, all the time will be'given to prevent the same, that a reasonable construction will admit.
   By the Court:

Monell, J.

There was no covenant on the part of the defendant to keep the premises in repair, nor that the premises should he tenantable, or should continue so during the term. There was a covenant on the part of the plaintiff to do the repairs required inside the house.

It is no defense to an action for rent, either that the premises were unfit for occupancy, or had become out of repair after the commencement of the term (Howard v. Doolittle, 3 Duer, 464; Cleves v. Willoughby, 7 Hill, 83; Sherwood v. Seaman, 2 Bosw., 127; Post v. Vetter, 2 E. D. Smith, 284).

Had there been a covenant by the landlord to keep the house in repair, a breach of such covenant would have authorized a recoupment of damages by the tenant.

The parol promise, which it was alleged the defendant made, to put the premises in good repair, cannot be sustained for the want of a consideration. She was under no obligation to do any repairs, and her promise was a mere nudum ¡pactum.

It is possible that the condition of the premises would have justified the plaintiff in abandoning them under the statute of 1860 (Sess. Laws, p. 592, ch. 345). Had she done so, it may be that she would have been relieved from the payment of rent after such abandonment. But she would have remained hable for all rent due or accruing up to the time of surrender (McKenzie v. Farrell, 4 Bosw., 192).

It is entirely clear, I think, that the plaintiff is liable to the defendant for all rent due at the time she was dispossessed. She has not stated any fact which would constitute a defense to an action for its recovery.

Such rent having remained unpaid, there was a default in the chattel mortgage, and the title to the property passed absolutely to the defendant, and she had an undoubted right to sell it to pay the debt.

I am unable to perceive any ground upon which the injunction can be sustained. The order should, therefore, be reversed and the injunction dissolved.  