
    Franklyn Haines, Resp’t, v. The L. Graf Manufacturing Company, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed January 30, 1888.)
    
    1 Landlord and tenant—Eviction no defense to action for rent due in advance.
    Ad eviction cannot be set up as a defense in an action on a covenant to pay rent in advance.
    8. Same—Right to occupy, good consideration for payment of rent in ADVANCE.
    The right to occupy premises under a valid agreement of letting is a good consideration for the payment of the amount of the rent in advance.
    Appeal from a judgment in favor of plaintiff entered on a verdict of a jury May 13, 1887, and from an order denying defendant’s motion for a new trial.
    The complaint alleges that defendant,' a foreign corporation, on or about January 19, 1887, at the city of New York, made its check for value on the German National Bank of Newark, New Jersey, requiring said bank to pay to plaintiff or order the sum of $333.33; the presentation, non-payment and protest thereof, and notice to defendant; and that the whole amount, $333.33, and protest fees $1.50 and interest, remains unpaid.
    The answer admits the making of the check, and alleges no consideration, etc ; that plaintiff, on or about January 19, 1887, agreed to rent and to deliver to the defendant possession of part of a store No. 57 Beade street, New York city, and agreed to give defendant possession thereof on January 20, 1887, for the period commencing on said date and ending May 1, 1887; that defendant, upon the faith of said agreement, made and delivered said check to said plaintiff; that plaintiff refused and wholly failed to deliver said premises or said possession to the defendant, and has retained and kept possession of said premises, and has failed and refused to perform said agreement.
    The defendant claimed and was allowed by the justice presiding at the trial the affirmative of the issue.
    It appears from the evidence herein that an interview took place in the early part of January, 1887, between the plaintiff and Herman Holtz, the treasurer of the defendant, and acting under the authority of the defendant, at which interview an agreement was entered into, whereby plaintiff rented and the defendant hired a portion of the store No. 59 Reade street, from the 20th of January until the 1st day of May, 1887, at the rent of $333,33, payable in advance; that there were at the time of renting two counters in the store, one of which was to be taken out, and one was to remain in the center of the store; that possession was to be given the next day, January 20, on which day the check was given; that Holtz did not go to the premises until January 26; that defendant did not demand possession of the premises because he, Holtz, as he testified, “found out that Mr. Haines had no "lease of the place; Mr. Jordan, to whom the place was leased, said he didn’t believe that the landlord would transfer the lease to Mr. Haines, and on that account I stopped payment of the check.” It also appeared that there had been no change in the store, at least that the counters had not been removed up to about the 1st day of April.
    
      Mathew Daly, for app’lt; A. Edward Woodruff, for resp’t.
   McGown, J.

The agreement of letting, about which there is no dispute, was a valid agreement; and the consideration for the check, the right to occupy the store till May 1st, was a good consideration. Raubitschek v. B lank, 80 N. Y., 478.

The defendant had the right to take possession of the store on the 20th of January, or at any time thereafter till May 1st. The plaintiff was not bound to move defendant into, or put defendant in actual posession. The defendant had the legal right of possession, which was all the plaintiff was bound to give under the agreement. It does not appear that the plaintiff ever refused or prevented defendant taking possession. On the contrary the plaintiff testified as follows: “I asked him (Holtz) when he wanted to come m, and he said about the 15th of February. I said * very well, come along.’ From that time to this he never asked to come in.” While Holtz testified that he never asked possession, because he found out that plaintiff had no lease, and again he stated that that was' the only reason for not paying the check.

Plaintiff did not agree to remove everything from the store, but only to remove one counter Had the defendant taken possession, he would have had a perfect right to remove the other counter therefrom The check was given as a payment of the rent in advance. His liability was fixed when the check was given. The defendant was not bound by his agreement to move in or to occupy the store. It was entirely optional with him to occupy it or not. Even an eviction cannot be set up as a defense in an action on a covenant to pay rent in advance. The law on this subject is so well settled that it seems to me to be unnecessary to cite any authorities in support thereof.

After a careful examination I have been unable to discover any errors in the ruling of the justice before whom the action was tried, which require, or which would warrant a reversal of the judgment or final order. The jústice in his charge presented the matter fully and fairly to the jury, and correctly charged the jury as to the law applicable to the case, and no exception^ were taken thereto by defendant’s counsel. I think, however, that if the justice committed any error at all, it was in his refusal to direct a verdict for the plaintiff, when requested by plaintiff’s counsel, upon the defendant’s own evidence; there being no evidence whatever, that defendant could not get possession of the premises on the 20th of January, or at any time thereafter; the defendant having the affirmative of the issue, and there being no such evidence offered by him.

The judgment and the order denying defendant’s motion for a new trial, appealed from, must be affirmed, with costs.

McAdam, 0. J., and Pitshke, J., concur.  