
    LESTER et al. v. GRIFFIN.
    (Supreme Court, Appellate Term.
    February 7, 1908.)
    1. Landlord and Tenant—Disturbance of Possession of Tenant by Landlord—Eviction—Action fob Damages by Tenant—Action fob Rent.
    Lessee’s lease required him to give three months’ notice of intended removal and to allow lessors to enter and show prospective lessees the premises and at any time visit and examine them. Lessors, less than three months prior to the expiration of the lease, wrote lessee, requesting permission to show a prospective lessee the premises, and, receiving no reply in two days, broke in, put on a new lock, and retained the key. Lessee removed forthwith. Held, that while such breaking, being merely a trespass, for which lessee might have damages against lessor, would not justify a refusal to pay rent, yet that the changing of the lock and retaining the key operated as an eviction, so that lessor could not recover for rent subsequently accrued.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 765.].
    2. Same—Eviction—Act of Landlord.
    In such a case there was no obligation on lessee to demand possession of the premises; a refusal to restore not being an essential element of an eviction.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant § 765.]
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
    Action by William C. Lester and another against Frank J. Griffin. From a judgment for defendant, plaintiffs appeal. Affirmed.
    Argued before GILDERSLEEVE, P. J., and SEABURY and GERARD, JJ.
    Stanley Holcomb Molleson, for appellants.
    George B. Hayes, for respondent.
   GERARD, J.

The action was brought to recover rent under a written lease for an apartment in the Westminster apartment house. The lease ran from October 1, 1906, to October 1, 1907. The action was brought to recover the August and September installments of rent. The rent was payable monthly in advance. The tenant (defendant) paid the rent in advance for the month of July. The lease contained the following clause:

“(7) The tenant agrees to give three months’ notice of intended removal, and to permit said landlord or his agent to show the premises to other parties at any reasonable hours of the day, and will allow a notice ‘To Let’ to be put thereon three months prior to the expiration of this lease, and will allow landlord, or his agent, at any time during the term, to visit and examine them at any reasonable hour of the day, and whenever necessary to have any repairs to same, or any part of the building.”

The plaintiffs are' the landlords. On July 18th the plaintiffs’ attorneys wrote the defendant (tenant), asking him to make an amicable arrangement for showing the premises, and received no answer by the next day but one, July 30th, on which date the plaintiffs broke into the defendant’s apartment, which was locked, changed the lock, retained the key of the new lock, and instructed the superintendent to show the apartments when he had applications for them. It appears that the apartment was not at that time occupied by the defendant, but his effects were there, and the defendant, as soon as he ascertained that forcible entry had been made in his apartment, removed forthwith. The defense claimed that the tenant had been evicted from the apartment prior to August 1st, and that therefore no action could lie for the rent due in August and September. Plaintiffs claimed they had the right to so enter defendant’s apartment because of the provisions of the lease, permitting them three months before the expiration of the lease to show the apartment.

This provision of the lease is quite a common provision in leases in this city. A man’s house is his castle, and it does not seem that a fair construction of this clause means that a landlord, when tenant is absent from his apartment, may write him a letter asking him for an arrangement for the showing of the premises, and, if he does not receive a response within two days from the sending of the letter, break into the tenant’s apartments at any hour that he chooses. Such breaking, however, would constitute a trespass, which would give the tenant an action for damages, but would not justify him in refusing to pay the rent; but in this case, in addition to breaking into the premises, the landlords changed the lock and retained the key. When they had done this there was no obligation on the tenant to redemand possession of the premises, and there is no necessity for refusal to restore as an element of eviction. Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446. The landlords, having excluded the tenant from possession of the premises prior to the time when the August rent accrued, cannot maintain an action for such rent.

Judgment affirmed, with costs. All concur.  