
    Nichols vs. Dusenbury and Bailey.
    Where A. before the first of May leased to B. a store and dwelling for one year from that day, for $450 annual rent, payable quarterly in advance, the store and dwelling to be erected and completed by A. by the said first day of May, the upper story to be finshed into a dwelling ; and B. entered into possession and remained until after the second quarter’s rent fell due, and then abandoned the premises; held, to be no objection to a distress for that quarter’s rent, that the premises were untenantable in consequence of the building not being completed by A. according to the agreement.
    
    4 plea to ar. avowry is bad if it do not answer all that it professes to answer. Thus, where a defendant in replevin avowed the taking of the goods as a distress for a quarter’s rent payable in advance, and the plea thereto, professing to be a complete answer, showed that the lessee occupied the premises for a part of the quarter and then abandoned the premises as untenantable in consequence of the landlord not finishing or repairing them according to his agreement, held that the plea was bad.
    Recoupment is in the nature of a cross action, and should not be pleaded in bar. Even if it were the proper subject of a plea it would be necessary to aver that the defendant’s damages exceeded, or were equal, to those due to the plaintiff.
    Where an avowry set forth a lease, by the terms of which the rent was payable quarterly in advance, and avowed the taking of the property as a distress for one quarter’s rent, and the plaintiff pleaded that such rent " never become or was due,” without denying the lease as set forth in the avowry, held that the plea was good for nothing.
    A surrender of demised premises after a distress made for rent due, will not render the distress unlawful.
    It seems that a plea which attempts to answer two distinct avowries is bad, although it allege that the premises and the rent mentioned in both avowries, are the same. But it is otherwise, if one of the avowries be bad in substance.
    A general avowry which does not set forth the landlord’s title, is good under the statute, (2 R S. 529, § 41,) when the tenant is in the enjoyment of the premises at the time the distress is made, although the rent is payable in advance, and the tenant leaves the premises before the end of the period for which the rent was to be paid.
    Where a defendant succeeds on any one avowry or plea in bar, going to the whole action, he is entitled to judgment, notwithstanding his other pleas or avowries are bad.
    In an action to recover the rent of demised premises, or in replevin after a distress for rent, it seems that the tenant may avail himself of a breach of the landlord’s agreement to repair by way of recoupment, but not by way of set-off; noi is such a defence available at all, under a plea of eviction.
    Where on a trial there is no exception to the refusal of the judge to charge as requested, it seems that such refusal cannot be reviewed on bill of exceptions, although there is an exception to the charge as actually delivered.
    Nichols brought replevin in the cepit in the superior court of the city of New-York, against Dusenbury and Bailey, for the taking of certain goods, the property of the plaintiff, Bailey pleaded non cepit. Dusenbury put in to the declaration two avowries In the first, he stated that the plaintiff at the time when, &c. was tenant to him of the store in which, &c. under a lease thereof, commencing on the first of May, 1843, and ending May first, 1844, at the yearly rent of $450, payable quarterly, in advance, on the first days of May, August, November and February; and that the quarter’s rent falling due on the first day of August, was due and unpaid at the said time, when, &c. He therefore avowed the taking of the goods as a distress for the said rent. The second avowry was intended to present the same defence; but was bad in substance, and need not be more particularly stated.
    The plaintiff pleaded to the avowries, 1. That Dusenbury agreed to let to him a store and dwelling, (the premises in question,) to be erected and completed by the first of May, 1843, the upper story to be finished into a dwelling; that he neglected to finish the upper story, and the same was in an untenantable condition, until the 24th of August, 1843, when the plaintiff abandoned the possession to Dusenbury, and ever since that time had continued out of the possession. 2. That the said Dusenbury at the said time when, <fcc. of his own wrong took the said goods “without this, that the said one quarter’s rent ever became or was due, in manner and form,” as alleged in the avowries. 3. That on the first day of August, 184b, he the said plaintiff was forcibly evicted from the premises by the said Dusenbury. 4. That on the 24th day of August-, 1843, the plaintiff surrendered the possession to Dusenbury, who accepted the same, and that he, the plaintiff, had ever since remained out of the possession. The defendant Dusenbury demurred to the first, second and fourth pleas, and took issue upon the third. The plaintiff joined in the demurrer, and the superior court rendered judgment against him upon all of them.
    The issue of fact joined upon the third plea, and the general issue pleaded by the defendant Bailey, (he being the officer who made the distress,) were afterwards tried; and on the trial the-, plaintiff read in evidence a lease from Dusenbury to himself, dated March 11th, 1843, for a “store and dwelling, to be erected and completed by the first day of May next; the upper story to be finished into a dwelling, as per plan and sketch exhibited for contract,” for one year from the said first day of May next, at the yearly rent of four hundred and fifty dollars, quarterly in advance. The plaintiff then offered to prove that the defendant Dusenbury did not complete the buildmg by the time specified in the lease. On objection made, the court excluded the evidence and the plaintiff excepted. The plaintiff then offered to prove that the premises were uninhabitable, and that he was obliged to remove therefrom in consequence of the repairs not being made pursuant to said agreement. This evidence was also excluded and the plaintiff excepted. The evidence being closed, the defendants waived a return of the property, and elected to take a verdict (if in their favor), for the amount of rent in arrear. The jury rendered a verdict for the defendants, and found one quarter’s rent in arrear. A bill of exceptions was made by the plaintiff, on which the superior court refused a new trial, and rendered judgment for the defendants. The supreme court sitting in the first district, on error brought, affirmed the judgment, and the plaintiff brought error to this court.
    
      C. A. Rapallo, for plaintiff in error.
    
      Winslow $ Morris, for defendants in error.
    
      
       Under the code, a tenant may recoup damages arising from the act of the lessor, not amounting to an eviction. Rogers v. Ostrom, 35 Barb. 523. Morgan v. Smith, 5 Hun 220.
    
   Bronson, J.

The first plea in bar to the avowries impliedly admits that the plaintiff' took and held possession of the demised premises nearly four months of the term. Of course there is nothing in toe argument that the agreement never went into effect m consequence of the defendant’s neglect to complete the building in proper time.

The plea is bad for not answering all that it professes to answer: The rent was payable quarter-yearly in advance; and

the quarter’s rent for which the defendant distrained became due and payable on the first day of August—more than twenty days before the plaintiff abandoned the premises. If the plea answers any part, it clearly does not answer the whole of the claim set up in the avowries, and is bad for that reason.

The plea is relied on by way of recoupment. But that is a matter which is never pleaded in bar. It is in the nature of a cross-action. The right of the plaintiff to sue is admitted; but the defendant says, he has been injured by the breach of another branch of the same contract on which the action is founded, and claims to stop, cut off, or keep back so much of the plaintiff’s damages as will satisfy the damages which have been sustained by the defendant. If such a matter could be pleaded in' bar of the action, it would be necessary to aver that the defendant’s damages exceeded, or were at the least equal to those due to the plaintiff: for otherwise the plea would not answer the whole action, and would be bad for that reason. But it is not a case for pleading in bar under any circumstances.

The second plea in bar to the avowries is not the usual answer of no rent in arrear. But the plaintiff denies, that the one hundred and twelve and a half dollars mentioned in the avowries “ ever became or were due.” As the quarter day when the tent became payable had passed, no one can tell what the plaintiff means by saying the rent never became due. If the meaning is, that rent cannot be made payable in advance of the enjoyment of the property, the plaintiff is mistaken in point of law. The plea is without a precedent, and is clearly bad,

The surrender of the premises set up by the fourth plea in bar was after the quarter’s rent distrained for had become due, and after the distress had been made: and whatevei other consequences may have resulted from the surrender, it could not have the effect' of rendering the original taking tortious, so that the plaintiff could maintain replevin in the cepit. If the times mentioned in the pleadings are not material, still the plaintifi should have alleged, that the surrender was prior to the distress, if not prior to the time when the rent fell due. The plea cannot be supported.

There is another objection common to all of the pleas. Each one attempts to answer both avowries, by averring that the premises and the rent mentioned in both are the same, which is not good pleading. (Sterry v. Schuyler, 24 Wend. 487; Seneca Road v. Auburn & Rochester R. R., 5 Hill, 170.) But it is, perhaps, a sufficient answer to this objection, that the second avowry is bad in substance. It does not show that there was any tenancy, or that the defendant was landlord. (Hill v. Stocking, 6 Hill, 277.) Being bad, the avowry called for no answer. But the pleas in bar must fail on other grounds, as we have already seen.

The first avowry does not show that the defendant had title to the demised premises, and would be bad at the common law for that reason. And it is said that the case is not within the statute allowing a general avowry, without setting forth the landlord’s title, because the rent was payable in advance, and the plaintiff, at the time of the distress, had not enjoyed the property during all the period for which the rent was to be paid. (2 R. S. 529, § 41.) But that is a narrow construction of the statute, and one which will often defeat the purpose of the legislature to render the pleadings of the landlord less difficult than they were at the common law. The rent was due, and the tenant was in the enjoyment of the land under the demise at the time the distress was made; and in such a case, I think the landlord may avow under the statute. No other objection has been made to the first avowry, and this is not well taken.

As the first avowry was good, and the pleas in bar were bad, the defendant was entitled to judgment on the demurrers, although the second avowry was not well pleaded. When the defendant succeeds on any avowry or plea in bar, going to the whole action, he is entitled to judgment, notwithstanding his other pleas or avowries may be defective. When there is one good defence to an action, it matters not how many poor ones there may be.

The remaining questions arise on the bill of exceptions The judge rejected evidence to prove that the building was not completed by the first of May; and that for the want of repairs, the tenement was rendered uninhabitable, and the plaintiff and his family were compelled to remove from the premises. In an action to recover rent, or when replevin is brought after a distress for rent, such evidence is not admissible by way of establishing a set off. (Allen v. Pell, 4 Wend. 505; Etheridge v. Osborn, 12 id. 529; Sickels v. Fort, 15 id. 529.) But the tenant may recoupe damages in such cases. (Westlake v. De Graw, 25 Wend. 669; Whitbeck v. Skinner, 7 Hill, 53. And see Ives v. Van Epps, 22 Wend. 155; Batterman v. Pierce, 3 Hill, 171.) I see no difference in principle, in relation to this question, whether the action is brought to recover rent, or is replevin after a distress for rent. But the evidence should not be received under all .possible circumstances. It was offered in this case under the plea of eviction, where it could not possibly be material, and was properly rejected for that reason. The evidence was not offered after the defendant had elected to waive a return of the property, and take a verdict for the rent in arrear.

The plaintiff did not except to the refusal of the judge to instruct the jury as requested. And besides, the instruction would have been improper. It did not appear that the defendant had received more rent for the year, including the amount in controversy, than the plaintiff had agreed to pay.

I see no error in the judgment, and am of the opinion that it should be affirmed.

Judgment affirmed. 
      
       See Morehead v. Barrett, Cheves 99; Kessler v. McConachy, 1 Rawle 435.
     