
    Joseph W. Doolittle, App’lt, v. Robert W. Selkirk, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 2, 1894.)
    
    1. Landlord and tenant—Surrender.
    Where tenant abandons and sends keys to landlord’s agent, who notifies him that he will rent the premises on his account, the retention of the. keys does not amount to an acceptance and surrender.
    3. Same—Tender.
    The landlord is not bound to tender a return of them. •
    3. Same—Possession op new tenant.
    Subsequent admission of a tenant in advance of a new term, to commence at end of former term, is not an acceptance and surrender.
    4. Same—Eviction
    Failure to repair, under covenant to do so by landlord, does not amount to an eviction, where the tenant can have the work done at small ex- - pense.
    5. Same—Rent. .
    Failure to repair, in such case, is no defense to action for rent.
    6. Evidence—-Presumption.
    In the absence of proof, there is no presumption of any enactment, in the state of Hew Jersey, as to the abandonment of leased premises, similar to our own.
    Appeal from a judgment of the justice of the first district court, in favor of the defendant in an action to recover the rent of a dwelling house in Bast Orange, H. J., known as number 63 Grove street, for five months from December 1st, 1891 to May 1st 1892 at $40 per month, payable in advance and also the water tax amounting to $2.60. The premises were let to defendant by lease under seal dated April 8th, 1891, for one year from the 1st of May following. The tenant abandoned the premises about December 17th, 1891, having paid rent up to and including the month of November previous. The defenses pleaded were, (1) Surrender and acceptance. (2) Agreement by the landlord, in the lease, to put a new furnace in the premises in the fall of 1891, that the same would be properly erected and the pipes leading from the same would be properly connected throughtout the house; and that she failed and refused to do so; to defendant’s damage. (3) Dangerous condition of the premises at the time the defendant went into possession ; which condition was unknown to him, but 'known to defendant, who allowed him to remain therein, although repeatedly notified thereof. (4) Eviction ; this being allowed by amendment on the trial.
   Daly, 0. J.

The defense of surrender and acceptance of the of the premises was not proved. When the tenant abandoned them he sent the keys to the landlord’s agent, who retained them and notified defendant that he would rent the premises on his account. The retention of the keys did not amount to an acceptance and surrender. The landlord was not bound to tender a return of them Thomas v. Nelson, 69 N. Y. 118. The subsequent admission of a tenant in the month of April following in advance of a new term to commence in May was not a surrender and acceptance. The landlord under the lease had the right if the premises were deserted to reenter and relet them. There was no breach of contract and no eviction by the landlord. ' She agreed to put in a new furnace and did so. There was no stipulation as to the amount of heat it should give. It failed to give out heat according to its capacity, because there was a defect in the pipe connections which caused a loss of two thirds of the hot air, but of this defect the landlord was not notified. Even if she had been notified, and failed to remedy it (without the intention to deprive the tenant of the beneficien! enjoyment of the premises) and the tenant could have had the work done at a small expense (in this case $25.00 which would have been set off against the rent) it would not have been an eviction. When the landlord, without intending to keep the tenant out of possession, retains a small portion of the demised premises, it is not an eviction . Vanderpool v. Smith, 1 Daly, 311. There was no wilful interference of the landlord with the beneficial enjoyment of the premises as in Dyett v. Pendleton, 8 Cow. 728, and Edgerton v. Page, 20 N. Y. 281. The furnace put in by the landlord failed, to yield its proper amount of heat from a defect of which the landlord had no notice. She employed a competent expert to put in the furnace, and any defect in its connections should have been called to her attention. The tenant had entire control of the furnace and the opportunity to discover defects if any in its construction. The covenant to put in a new furnace by a certain date in the fall, was not a condition precedent to the payment of rent, as is sometimes the case with respect to covenants to put demised premises in repair. Kiernan v. Germain, 61 Miss. 503 ; Stronecker v. Baldwin, 21 Ga. 430. Her covenant and that of the tenant were independent, and her failure to perform would not be a defense to an action for the rent. Failure of the landlord to make repairs is no defense to an action for rent. 12 Am. & Eng. Enc. of Law 1005. The landlord’s breach of a covenant to repair would not authorize an abandonment by the tenant unless by the terms of the agreement the repairs were made a condition precedent to the tenant’s obligation to occupy the premises. Speckels v. Sax, 1 E. D. Smith, 253. There was no proof that the premises were'in a dangerous condition when let. The sole complaint of the tenant was with respect to the insufficiency of the furnace subsequently put in. The real claim of the plaintiff is that by reason of the insufficient heat the premises became untenantable and he had a right to abandon them. Such right is given by statute in this state and does not exist independently of statute. There is no proof of the statute law of the state of Hew Jersey, where these premises are situated, and there is no presumption of any enactment there similar to our own. Graves v. Cameron, 9 Daly, 153. But in addition this was the letting of an entire dwelling house of which the tenant had exclusive possession and control, no part of which was reserved to or retained by the landlord, as in the case of tenements occupied by several families where the landlord controls the supply of steam heat, hot air furnaces, water supply and the like, and whose acts, or omissions, may consitute an eviction and justify the tenant in abandoning the premises. Ryan v. Jones, 2 Misc. R. 65 ; 49 St. Rep., 140; Lawrence v. Burrell, 17 Abb. N. C. 312; Tallman v. Murphy, 120 N. Y. 351; 31 St. Rep., 483 ; Bradley v. DeGoicouria, 12 Daly, 393. The plaintiff,therefore, seems to be entitled to recover the whole amount sued for. Even had there been an eviction the rent due on the 1st of December while the tenant was in possession would have been recoverable and so in no event could there be a dismissal of the complaint. Giles v. Comstock, 4 H. Y. 270. Judgment reversed. Hew' trial ordered. Costs to appellant to abide event. All concur.  