
    Joseph W. Doolittle, Appellant, v. Robert W. Selkirk, Respondent.
    (New York Common Pleas—General Term,
    April, 1894.)
    Where a tenant abandons the premises and sends the keys to the landlord’s agent, the landlord is not bound to tender a return of them, and a retention thereof does not amount to a surrender and acceptance.
    Nor will the subsequent admission of a new tenant in advance of a new term have that effect where the landlord has a right under the lease to re-enter and relet in case the premises are deserted.
    A failure by the lessor of an entire dwelling to remedy defects in the furnace connections whereby there is a loss of heat, of which defects he has no notice, does not constitute an eviction which entitles the lessee to abandon the premises.
    The rule is the same where the lessor is notified of the defect and fails to remedy it without any intention to deprive the lessee of the beneficial enjoyment of the premises, and the lessee can have the work done at small expense.
    Unless a covenant in a lease to put in a new furnace by a specified date is made a condition precedent to the lessee’s occupation by the terms of the lease, a failure to perform, such covenant is no defense to an action for rent.
    There is no presumption that the statute law of another state is the same as in this state.
    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 East Orange, FT. J., known as Ko. 83 Grove street, for five months from December 1, 1891, to May 1, 1892, at forty dollars per month, payable monthly in advance, and also the water tax, amounting to two dollars and sixty cents.
    The premises were let to defendant by lease under seal dated April 8, 1891, for one year from the first of May following. The tenant abandoned the premises about December 17, 1891, having paid rent up to and including the month of Rovember 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 throughout the house, and that she failed and refused to do so to defendant’s damage; (3) dangerous condition of the premises at the time defendant went into possession, which condition was unknown to him but known to defendant, who allowed them to remain therein, although repeatedly notified thereof ; (4) eviction, this being allowed by amendment on the trial.
    
      Mooyiey & Shipman, for appellant,
    
      Wells e& Waldo, for respondent.
   Daly, Ch. J.

The defense of surrender and acceptance 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 ail 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 re-enter and r'elet 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 connection 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 beneficent enjoyment of the premises), and the tenant could have had the work done at a small expense (in this case twenty-five dollars, 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 willful interference of the landlord with the beneficial enjoyment of the premises, as in Dyett v. Pendleton, 8 Cow. 325, 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 as 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 ; Strohecker v. Barnes, 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. Ency. 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. Speckles 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 Rew 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 constitute an eviction, and justify the tenant in abandoning the premises. It Ryan v. Jones, 2 Misc. Rep. 65; Lawrence v. Burrell, 17 Abb. N. C. 312; Tallman v. Murphy, 120 N. Y. 351; Bradley v. De Goicouria, 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 first 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 N. Y. 270.

The judgment should be reversed and new trial’ ordered, costs to appellant to abide "event.

Bischoff and Pryor, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  