
    Peck and another v. Ingersoll and another.
    
      Landlord and Tenant.
    
    Where there is a right of re-entry, for non-payment of rent, a sub-tenant may pay his rent to the paramount lessor, in order to protect his possession; though there be no demand, nor threat of legal proceedings.
    Appeal from the general term of the Court of Common Pleas of the city and county of New York, where a judgment had been entered upon a verdict in favor of the defendants.
    This was an action to recover three quarters’ rent, which accrued in 1847, upon a lease from the plaintiffs to the defendants, of the first floor and cellar of the store No. 230 Pearl street, in the city of New York. The rent reserved was $800 per annum, payable quarterly ; one quarters’ rent, it was admitted, had been paid to the plaintiffs.
    It was shown on the.trial, that Mary E. Dunscombe, the owner of the premises, had demised the store to the plaintiffs for the term of five years from the 1st May 1843, ^ at an annual rent of $1240, payable *quarterly, -I reserving the rights of distress and of re-entry, in case of default in the payment of the rent, for ten days after it became due and payable. And the defendants offered to prove that, prior to the commencement of this suit, they had paid the three quarters’ rent claimed, to Mrs. Dunscombe, on account of the rent reserved to her by the paramount lease. The admission of this evidence was objected to, by the plaintiffs; but the court overruled the objection, and admitted the evidence, to which an exception was taken.
    
      A verdict having been rendered in favor of the defendants, the exceptions were argued at general term, where judgment was given for the defendants, upon the verdict; whereupon, this appeal was taken.
    
      Mather, for the appellants.
    
      Taber, for the respondents.
   Gabdineb, J.

The original lease between Mrs. Dunscombe and the plaintiffs contained a covenant of reentry on the non-payment of rent by the lessees, for ten days after it fell due. The jury have found that the ground-rent was due to Mrs. Dunscombe, by the defendants, the lessees’ tenants; and the only question of any importance, is, whether they were justified in making such payment, and entitled to have the amount applied in discharge of their rent due to the plaintiffs.

It has .been frequently decided, upon the most obvious principles of justice, that if an under-tenant be compelled to pay rent to the head-landlord he may deduct it from the rent due to his immediate lessor; or, if the sum paid exceeds that due to the lessee, the tenant may, in an action of assumpsit for money paid to the use of the lessor, recover the excess. (1 Smith’s Leading Cases, 4 Am. ed., 202-4, marg. pages 73-5, and cases there cited; 4 T. R. 511.) This privilege upon the part of the under-tenant exists, if there be in the head-landlord a legal right, by the exercise of which, the person who pays may be damnified, unless he satisfies it. (1 Leading Cases 203.) It is not necessary, that the head-landlord should distrain, or even demand the money, or commence or threaten a suit. The right to enforce *his claim in this way will make the payment by the under-tenant compulsory, within the principle of the decisions. [*530

In this case, the original lessor had, as we have seen, the right of re-entry. The under-tenant was authorized to protect his possession against the exercise of this right, by paying the rent to the head-landlord. Such a payment is not voluntary, and there is no question, but that it was made by the defendants in good faith, with an honest purpose to shield themselves from damage. I think, the judgment of the common pleas should be affirmed.

Judgment affirmed.  