
    FRANK JOHNSON, et al., Plaintiffs and Respondents, v. CHARLES J. OPPENHEIM, et al., DEFENDANTS AND APPELLANTS.
    H. Landlord and Tenant.
    1. Covenant for quiet enjoyment.
    
    Relates only to the title, not to actual possession or undisturbed enjoyment, where there is no eviction.
    3. Covenant as to use of premises.
    
    A covenant that the tenant shall use the premises for particular purposes only cannot be construed into an implied contract or warranty Try the lessor that the premises shall be or continue fit for those purposes.
    3. Eviction and acts of trespass by landlord.
    
    
      1. Classification of principles and authorities concerning.
    
      2. What does not constitute eviction.
    
    
      a. Excavating in an adjoining lot by the owner thereof, not being the lessor, the effect of which excavation is to weaken the foundation, walls, and floors of the building on the demised premises, and to cause the building "to settle, and erecting a building on the adjoining lot, the effect of which is to shut up several windows in the building on the demised premises (no question of ancient lights being involved),' will not constitute eviction.
    4. Act of 1860, Chap. 345, relieving tenants from payment OF RENT IN CERTAIN CASES.
    
      a. Construction of.
    
    The lessee must quit and surrender possession to entitle him to the benefit of the act.
    1. Surrender, what not sufficient,
    
    
      a. Although the lessee quits himself, yet if he has sublet a portion of the premises and the sub-lessee-continues in possession of that portion, the surrender 'does not satisfy the statute; and this, although there was an arrangement between the lessee" and his tenant that his tenant should quit at the same time he did, and the lessee has received no rent from, his tenant since the day when he, the lessee, quit.
    
      6. Surrender, waiver of, what not.
    
    If the surrender is insufficient, the lessee is not relieved from making an effectual surrender by reason of the lessor’s refusal to accept any surrender, and this, although the refusal is based on the ground that causes assigned for the surrender do not exist, and if they do exist it was by the fault of the lessee.
    H. Statutes, Construction of.
    1. Various principles relating to this subject referred to and commented on.
    1H. Amendment at tbiad.
    1. Rests in the sound discretion of the Court.
    2. A motion for leave to set up a new and separate defense, and to raise an entirely new issue, the granting of which .would operate as a surprise on the plaintiff, should never be granted on the trial.
    Before Freedman, Curtis and Sedgwick, JJ.
    
      Decided May 4, 1872.
    Appeal from judgment entered upon the verdict of a I jury and from order denying defendants’ motion for a |new trial upon the judge’s minutes.
    The action was brought to recover thirty-five hunIdred dollars, a quarter’s rent, due November 1, 1869, |of the premises, with the buildings thereon, known' as To. 475 Broadway, running through to Mercer-street, [under a léase of the premises made by the plaintiffs, ¡the owners, to the defendants, dated January 15,1869, for five years, from May 1, 1869, "at the annual rent of fourteen thousand dollars, payable quarterly.
    The lease contains the usual covenant on the part of the defendants, as lessees, to pay the rent, and a covenant on the part of the plaintiffs that the defendants, j>n paying the said rent reserved and fulfilling all the lovenants and agreements on their part, shall, during the term granted, enjoy and quietly hold said demised Premises, without let or hindrance of the plaintiffs, their successors, heirs or assigns, or any other person whatever. It also contains the following provision :
    “And the premises hereby demised are to be used in the business of importers and manufacturers of and dealers in cloaks and mantillas, and for any other purposes or business not more hazardous, as respects fire, than the business aforesaid, but for no other business, without written permission first had of the said party of the first part, &c.”
    The defendants, by their answer admitting the lease, and their entry and occupation of the premises thereunder, down to October 1, 1869, set up for defense :
    
      First. That on the first of October, the premises having become untenantable, without fault on their part, they surrendered possession, the principal cause of the injury to the premises having been the improvements on the adjoining property, against which the answer alleges that the plaintiffs did not provide proper or requisite precáutions.
    
      Second. That by the improvements on the adjoining premises, certain windows in the north gable wall oí the building leased, which were useful and important for the purposes of their business, were closed, and that they surrendered on. that account.
    
      Third. The defendants admit their liability for the rent down to October 1, 1869, the date of their allegec surrender, two thousand three hundred and thirty three dollars and thirty-four cents, and offer judgmen for that amount.
    The court having awarded the opening, and close t< the defendants, they gave evidence tending to shov that about June 1, 1869, Mr. William C. Rhinelander the owner of the lot adjoining on the north, tore dowi the old building standing on his lot, and proceeded t excavate the same for the purpose of erecting a net building thereon, but that by reason of the defendants refusal to give the necessary license, the building leased was not properly shored up; that as the excavation proceeded, the foundation of the north wall of the building gave way in part, and the wall itself and the lower floors of the building were consequently weakened and impaired solely in consequence of the building not being shored up ; that on August 24, a portion of the ground floor settled a foot or two, and the stairway to the second floor, the ceilings, &c., were more or less disturbed. On that day the defendants wrote to the plaintiffs that by reason of the settling down of the floor the premises had become untenantable, and that they should therefore be compelled speedily to vacate the premises, and asking with whom and where they should leave the key. The plaintiffs replied that they should decline to receive the key. The defendants continued to occupy the store, being more or less incommoded by the results of the excavation, until October 1,—and meantime the erection of the new building adjoining closed up the windows on the north gable. On September 30th, the defendants having moved out their stock of goods, &c., sent the key of the front door of the store on Broadway, by express, to the plaintiffs and wrote them by mail to that effect, stating that they had vacated the premises in consequence of the same having become untenantable. The plaintiffs refused to receive the key, and replied by mail, October 2, that they wholly refused to accept any surrender of the premises, or to accept the key, and would hold the defendants liable for all rent to accrue under the lease—and "denying that the premises had been rendered untenantable, but that if they had, it was solely occasioned by the defendants’ persistent refusal to allow the property to be shored up and protected against the adjoining excavation.
    There was no pretense of any other surrender or attempt at surrender of the premises on the part of the defendants than this of October 1st.
    Between the date of the execution of the lease and of the commencement of the term., the defendant executed to one Fischer, a manufacturer, a written lease of the entire fourth floor of the building and of a portion of the third floor for the entire period of the defendants’ term under the lease. Under this lease Fischer entered into possession in May, 1869, of the portion of the premises so leased to him,, and continued so to occupy the same and to carry on his business therein until after the expiration of the quarter for the rent of which this action is brought. When the defendants quitted their part of the building and sent the key of the store to the plaintiffs, they left him in possession of the third and fourth floors and took no proceedings whatever to remove him.. It appeared also that the key which the defendants sent- by express was only the key of the store; that the entrance to the lofts occupied by Fischer was by a separate outer door and stairway on Broadway, to which there was another and different key, and that no offer of this key was made to the plaintiffs. The defendants offered to prove that Fischer had agreed to go out when they did, and that they only received rent from him up to the time they left; but this evidence was excluded as immaterial. Upon this state of facts, the defendants having rested, the plaintiffs moved the court to direct a verdict in their favor for the whole quarter’s rent, insisting that the defendants had proved no surrender, and the court so ordered, and the defendants excepted.
    Defendants’ counsel submitted a series of requests to charge the jury, but the court refused to charge any of them, and defendants’ counsel excepted to each refusal separately.
    The jury, by direction of the court, found a verdict for the plaintiffs for three thousand nine hundred and eighty-five dollars and ten cents.
    The defendants’ counsel then moved for a new trial on the minutes of the judge, upon the legal exceptions taken in the course of the trial; on the exceptions taken to the refusal of the court to charge as requested by the defendants; on the exceptions taken to the charge of the court as delivered, and also upon the ground of insufficient evidence to warrant the direction of the court to the jury to render such a verdict, or to warrant the jury in rendering such a verdict.'
    The motion was denied by the court, and to the decision of the court in that behalf, and each and every part of it, the defendants’ counsel then and there duly excepted.
    Judgment was thereafter entered upon the verdict, and defendants appealed from the judgment and also from the order denying the motion for a new trial.
    
      Levy Cohen, attorney, and John Graham, of counsel for appellants, argued :
    I. The court erred in refusing to charge the jury “that if by the improvements on 477 Broadway, or the building or alterations thereon, the premises were rendered untenantable and unfit for occupancy, that was an eviction of the defendants from the premises within the meaning of the law, and that whether they remained upon them or quit them during the existence of that eviction, they were discharged from liability for rent.” The four previous requests involve the same legal principle as this one, and can be considered with it. The first and third were directed to the exclusion of the defendants from the door-way and windows in the north gable wall. The sum and substance of the five requests were, that the defendants were evicted, and that the plaintiffs were answerable for the eviction, whether they lost the benefit of the premises, in whole or in part, from the causes proved—either by their becoming untenantable and unfit for occupancy, or by being deprived of the door-way and windows in the north gable wall, or by a deprivation in any other respect. The reasoning of the court on the trial evidently was, that an eviction was only predicable of some cause originatwith the landlords. The act of April 13, 1860, cannot be mystified. It may be unreasonable, but its provisions seem to be plain. 1st, the building must be so far destroyed, or injured, as to be untenantable and unfit for occupancy; 2nd, the lessees or occupants must be without fault or neglect; 3d, the cause can be the elements, or any other cause; 4th, from the moment the state of things contemplated by the act arises, the lessees or occupants shall not be liable or bound to pay rent, the words of the statute being, “ shall not be liable or bound to pay rent to the lessors or owners thereof (the building) after such destruction or injury;” 5th, “unless otherwise expressly provided by written agreement or covenant;” and 6th, in addition to being exonerated from the liability or obligation to pay rent, “the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.” The scope of this statute is this, that when the demised premises become untenantable' and unfit for occupancy, that is an eviction of the tenants, suspending the right of the landlords to rent so long as it lasts. In addition to this, the tenants may quit and surrender, thereby absolutely annulling the lease. They have this option, but are not bound to exert it. The landlords have the remedy in their own hands. They can provide to the contrary of all this, by a proper agreement or covenant. It is very easy to say in the lease that, if the building or buildings shall become untenantable and unfit for occupancy, by reason of destruction or injury by the elements or any other cause, the lessees or occupants 
      
      shall still be liable or bound to pay rent. This is what the statute means by the words, ‘ unless otherwise expressly provided by written agreement of covenant.” It is not enough that there is a simple covenant to pay rent for the whole term. The covenant must be specific, and state that the tenants or occupants shell remain liable for the rent, notwithstanding the building or buildings shall be so far destroyed, or injured, by the elements or any other cause, as to be untenantable and unfit for occupancy.. The injustice of the act, if there be such, in reference to landlords, is not to interfere with the effect to be given to the legislative will. It may be considered unequal to have to hold that, where no blame morally attaches to a landlord, he should be stripped of his rent, and yet the tenant have the right to remain in or go out, as he sees fit, without the ability of the landlord to control him, unless, if he remains in, by making the premises again tenantable and fit for occpancy. That is not the way to look at it. The inquiry is, if the law is constitutional, what does its language mean? The terms “untenantable” and “unfit for occupancy” are relative terms. In this instance they are to be construed with reference to the business for which the premises were leased, that of ‘ Importers and Manufacturers of and Dealers in Cloaks and Mantillas” (Myers v. Burns, 35 N. Y. 269, per Hunt, J., 271, 272). In reference to the “cause” of the destruction or injury, the statute admits of the most comprehensive interpretation. It may be the elements, fire, water, a tempest, the violence of a mob, or anything else we can imagine. The following authorities are referred to in conjunction with this statute (Graves v. Berdon, 26 N. Y. 198 ; Bloomer v. Merrill, 1 Daly, 485, per Daly, J., 486; Doupe v. Genin, 1 Sweeny, 25; S. C., 45 N. Y. 119 ; Davis v. Banks, 2 Id. 184; Murray v. Waller, Mass. Com. Pl. Gen. T., Oct. 1870). The court tried the case as though the defense turned entirely upon the lease, instead of upon the aet of 1860. Under that act, the lease was a mere circumstance in the case, and all the circumstances, whether conversations,-or whatever else, preceding or occurring at the execution of the lease, were to be considered, in determining whether the defendants were entitled to the benefit of the act. Was the question of fault or neglect on the part of the defendants, to be decided by the lease ? Were they not entitled to prove that they were assured against any interference or injury from Ho. 477, as a condition of accepting the lease, and were they to be denied the benefit, of such a fact, because the lease said nothing about it, when they were planting themselves upon this act of 1860 % That act brolce down all writings, except they contained an express stipulation by the defendants, waiving the benefit of its provisions altogether.
    
    II. The court erred in disallowing the question to Mr. Cohen, as to whether anything was said in a con-' versation between Mr. Johnson and either of the defendants, prior to or at the execution of the lease, as to the plaintiffs accepting a surrender from the defendants, if anything was done on 477 Broadway. The witness had stated that he was present at such a conversation, when the subject of improvements on Ho. 477 was spoken of. When this evidence was first objected to by the plaintiffs’ counsel, the defendants’ counsel stated that lie offered it (in part) to show that Mr. Johnson had been guilty of fraud. The court sustaining the objection, notwithstanding, the “defendants’ counsel then moved for liberty to insert in the answer a specific defense of fraud in the procurement of the lease in question from the defendants, or for an amendment of the fourth defense in the answer, so as to include the allegation of 'fraud. The court denied this motion, although the plaintiffs' counsel did not 
      
      pretend that he was unprepared for sueh a course, or that the granting of the motion would take him by surprise. The court acted for itself, without waiting for an. objection. Was not this amendment competent? (Code, §§ 169-171).
    III. The questions to Mr. Cohen were erroneously disallowed by the court. The object of these questions was to show that, if Mr. Fischer the (alleged) tenant of the upper part of Ho. 475 Broadway remained in possession after September 30, 1869, it was without the least shadow of right, so far as the defendants were concerned—that he had unqualifiedly agreed to leave on that day—that any lease or hiring to him had been absolutely annulled, by mutual consent, as of and from that day—that he paid no rent after that day— that he was a mere interloper after that day, liable to immediate ejection—and that-the defendants exercised no dominion whatever over, and. had no possession whatever of, the premises from or after that day. The court, thus, virtually decided that the defendants could not prove they had quitted and surrendered the premises, as of and from September 30, 1869, and. yet the plaintiffs’ counsel -'took the ground on the trial that Mr. Fischer’s remaining there after that day, and so the court held, was a prolongation or continuation of his tenancy, which, as it had been originally created by the defendants, prevented their taking the ground that there was a complete perfect surrendry. In other words, the court held that the defendants did not go out, and denied them the right to prove the fact fully, if there was the least doubt about it. Again: if the defendants were bound to pay rent, if they did not go out after the building became untenantable and unfit for occupancy—the contrary of which we assume— this proof went to the very point of discharging their obligation to pay rent. It would have shown that there was no occupancy either by themselves or through Fischer. Besides, the letter of the plaintiffs, of October 3, 1869, might be construed as not admitting a perfect surrender, although we think otherwise: In this view, the evidence was demanded.
    Evarts, Southmayd & Choate, attorneys, and Joseph H. Choate, of counsel for respondents, argued:
    I. The defendants’ attempted surrender on the first of October, was wholly ineffectual—was no surrender in law or in fact, because the continued possession of their lessee in the third and fourth stories was their possession. His title was good against the plaintiffs, and the defendants’ surrender of the key of the store, leaving him in, was a mere sham and pretense. The defendants, therefore, continued liable on their covenant to pay the rent, (a.) The true construction of the act of 1860, upon which alone the defendants based their claim of a right to surrender the premises, by reason of the condition of the premises, does not exempt the lessee or occupant from the liability or obligation to pay rent according to the covenants of his lease, unless he avails himself of the privilege thereby given him in the contingency contemplated by the statute, to make a complete and effectual surrender of the possession. It does not. give him the right to continue in the enjoyment and occupation' of the premises, and yet be free from the rent. (&.) The statute makes no apportionment or division of the building, or of the untenantableness, or of the surrender. It means that if the entire building becomes wholly untenantable, the lessee may, by surrendering the whole, be discharged from the liability for the rent. So long as he remains in possession and use of a part of the building, it is conclusive evidence as against him that it is not untenantable, and he is estopped to say, or to plead that it is so, or to say or to plead that he has surrendered the possession of the leasehold premises, (c.) It is true that the literal reading of the statute is, that if the building is destroyed or becomes untenantable, the lessees shall not be liable to pay rent afterwards, and may quit and surrender the possession; but the purpose of the statute and the nature of the grievance it was designed to remedy forbid us to construe the two clauses independent of each other, or to give the lessee the benefit of the relief from the rent except upon the condition of Ms surrendering the possession, (d.) Besides, the statute requires the tenant to show, as a condition precedent to his right to avail himself of the remedy provided by it, that the destruction or injury which the premises have sustained have been without any fault or neglect on his part. But in this case not only has he failed to show that, but it clearly appears upon his own evidence that the whole damage and injury arose from his declining to give the necessary license or permission to shore up, without wMch the adjoining proprietor making the excavation which did the mischief was neither bound nor at liberty to undertake it. (e.) The form of the plaintiff’s refusal to accept the partial surrender of the premises tendered, or his absolute refusal :to accept any surrender, is of no consequence, so long as the defendants continued after the attempt, to occucupy and enjoy by their subtenant any portion of the premises. The statute requires them not only completely to surrender, but also absolutely to quit the possession. (f.) The defendants’ offer to show that Fischer agreed to go out, and that they declined to receive rent from him after they went out themselves, were properly excluded by the court as immaterial. No agreement, understanding, or dealings between them and their subtenant, could amount to the quitting and surrender of the possession, so long as he remained actually in—and so long his possession was their possession and not the plaintiffs’.
    
      II. Independently of the act of 1860, no eyiction was proved, (a.) As to the defendants’ plea of the closing np of the windows overlooking the adjoining lot, which was owned by a strangér. The right of an adjoining owner so to improve and build upoh his own premises, as to shut up the windows, is unquestionable, and there is no4 covenant' against it by the plaintiffs in the case. Even had the plaintiffs themselves owned the adjoining lot, they might have built upon it in the same way and closed up the defendants’ windows, without any breach of their contract as landlords (Palmer v. Wetmore, 1 Sandf. 316; Parker v. Foote, 19 Wend. 309 ; Meyers v. Gemmel, 10, Barb. 537). (b.) The covenant for quiet enjoyment contained in the lease is only a covenant of title, meaning only that the defendants’ enjoyment shall not be disturbed or interfered with by paramount title. There is no warranty, express or implied, against trespasses or the acts of strangers. Nor, because the building was let for the purposes of the defendants’ business, or other business not more hazardous, was there any implied contract or warranty on the part of the landlord that the tenement should be or continue fit for such purpose (Howard v. Doolittle, 3 Duer, 464).
   By the Court.—Freedman, J.

The covenant for quiet enjoyment contained in the leáse means only that the tenants shall not be evicted by a paramount title. It relates only to the title, and not to the actual possession or undisturbed enjoyment, where there is no eviction from the premises demised.

Nor is there any actual or implied contract or warranty on the part of the plaintiffs in this case, that the premises demised shall be or continue fit for the purposes of defendants’ business. . The clause contained in the lease, which requires the premises to be used in the business of importers and manufacturers of and dealers in cloaks and manillas, or for any business not more hazardous, as respects fire, than the business specifically mentioned, cannot be construed into any such implied contract or warranty (Howard v. Doolittle, 3 Duer, 464; Doupe v. Genin, 1 Sweeny, 29 ; affirmed, 45 N. Y. 119).

Myers v. Burns, 35 N. 7. 269, is not an authority for the proposition that it should be so construed. In the last mentioned case the landlord had leased the premises “asa first class hotel,” and had covenanted to keep the said hotel and premises in good necessary repair during the term, at his own proper charge and expense.”

To defeat plaintiffs’ action, therefore, defendants had either to prove an eviction, or to bring themselves within the provisions of the act of 1860, and before the verdict rendered against them pursuant to the direction of the court can be upheld, it must appear clearly that he failed to do either. The defendants had the affirmative of the issue. There being no conflict of evidence, when they rested their proofs, all presumptions and inferences which they would have had a right to ask the jury to draw in their favor from the facts proven, if the case had been submitted to the jury, are to be conceded to them.

The adjudications of this State, bearing upon the general subject of interference by landlords with tenants, may be assorted into three distinct and entirely different classes of cases, the remedy for each class being peculiar to it, viz :

I. Cases where the tenant is evicted without the willful or voluntary agency of the landlord, from the whole or some part of the demised premises; as, for example, an eviction of the tenant by title paramount of a contiguous proprietor. Here, if the eviction is from the whole premises, the tenant is not chargeable with rent; but if it be from a part of the premises, the law, in its inability to impute blame to the landlord for the act of another person, requires the rent to be apportioned, so that the tenant shall be liable to pay for such portions of the premises as he retains (Moffat v. Strong, 9 Bosw, 57; and see Mark v. Patchin, 29 How. Pr. 20).

II. Cases where the landlord commits an act or acts of trespass, which interfere, more or less, with the beneficial enjoyment of the premises, but which leave the demised premises intact, and do not deprive the tenant of any part of them, so that, though he may be injured, he is not thereby dispossessed. Here the rule is, inasmuch as the wrongful act of the landlord stops short of depriving the tenant of any portion of the premises, that such trespass is no defense against the liability for rent, and the tenant’s sole remedy therefor is an action for 'damages against the wrongdoer (Edgerton v. Paige, 20 N. Y. 283; Lounsbery v. Snyder, 31 Id. 514; Cram v. Prosser, 2 Sandf. 120; Mortimer v. Bruno, 6 Bosw. 653 ; Peck v. Hiler, 31 Barb. 117).

III. Cases where the landlord enters willfully upon and expels the tenant, actually or constructively, from a part of the demised premises. Here the rule is, that the whole rent is suspended during the term, though the tenant continue in possession of the residue (Cristopher v. Austin, 1 Kern. 217 ; Peck v. Hiler, 24 Barb. 178).

« Ho eviction, actual or constructive, within the decision of any of these cases, has been proved in the case at bar. The right of William C. Rhinelander, the owner of the lot adjoining the premises in question on the north, so to improve and build upon his own lot, as to shut up the windows in the north wall of the premises demised to the defendants, there being no question of ancient lights, cannot be disputed ; and as the lease contains no covenant against it, the closing up of said windows by Rhinelander cannot be tortured into an eviction, actual or constructive, of the defendants from the whole or any part of the demised premises. Even had the plaintiffs themselves owned Bhinelander’s lot and built on such land in such a manner as to obstruct and darken the windows in the premises demised, such act, even if it were a ground for damages, would not have operated as an eviction (Palmer v. Wetmore, 2 Sandf. 316; Parker v. Foote, 19 Wend. 309; Meyers v. Gemmel, 10 Barb. 537).

Hot having shown an eviction independently of the act of 1860, the next inquiry'is whether defendants have brought themselves within the provisions and purview of that act. How, it is true that the literal reading of the statute is that if a building, without any fault or neglect on the part of the lessee, be destroyed, or be so injured as to be untenantable and unfit for occupancy, the lessee shall not be liable to pay rent after such destruction or injury, unless otherwise expressly agreed, and may quit and surrender the possession. The defendants claim the benefit of such literal reading, and insist that the statute should be so construed as to mean that, whenever the demised premises become untenantable and unfit for occupancy, that constitutes an eviction of the lessee, suspending the right of the landlord to rent so long as it lasts ;' and that, in addition to this, the lessee may quit and surrender and thus absolutely annul the lease; that he has this option, but is not bound to exercise it. But as such literal interpretation would lead to the absurd consequence, in case of the destruction or unfitness of only a comparatively small part of the demised premises, of continuing the lessee in the enjoyment and occupation of the premises, and yet absolving him from all rent, it cannot be adopted. As laws must necessarily deal in generals, and cannot descend to particulars, and as the interpretation of them is the application of them to particular cases, and as the presumption is against an absurd intent, whenever the words, taken in their ordinary sense, would lead to such a consequence, it is the.duty and province of the court to so far restrict their meaning as to avoid such a consequence. Eomat says upon this point: “Whenever it happens that the sense of a law, how clear soever it may appear in'the words, would lead us to false consequences, and to decisions that would be unjust, if the law were indifferently applied to everything that is contained within the expression, the palpable injustice that would follow from this apparent sense, obliges us to discover by some kind of interpretation, not what the law says, but what it means, and to judge by its meaning, how far it ought to be extended, and what are the bounds that ought to be set to its sense.’ ’ The interpretation here referred to is to be guided again by certain well established rules, and one of the most prominent of these, and one which helps us most in the discovery of the true meaning of the law, is the reason of the law, or the cause which moved the legislature to enact it. This ought not to be confounded with the mind of the law; for that is nothing but the genuine meaning of it, for the finding out of which we call in the reason of it to our assistance.

Another rule is that, in case of doubt, a statute consisting of divers parts or clauses is to be judged by looking at the whole, and to be construed so as to carry out the intention of the law-making power. The whole context may be considered, in endeavoring to collect such intention, although the immediate object of the inquiry be the meaning of an isolated clause.

The reason and spirit of cases, therefore, make the law, and not the mere letter.

ISow, what was the reason for the passage of the statute in question, and the main intent of the legislature in enacting it % At the time of such passage the law was firmly settled, by a long series of adjudications in the English courts, as well as our own, that upon a lease, with a covenant to pay a stipulated annual rent, the rent is payable by the lessee to the end of his term, though the property be destroyed by fire, and that the lessee has no relief against an express covenant to pay the rent, either at law or in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. This rule operated so harshly in many cases that, as is well known, the legislature interfered by the passage of the act now under consideration. The act, in the absence of a written agreement or covenant to the contrary, reverses the prior rule of law, and affords relief not only against fire, but against the elements generally, and any other cause, by which the building may be so far injured as to be untenantable and unfit for occupancy. But it makes no apportionment or division of the building, or of its destruction, untenantableness or unfitness. Consequently, so long as the lessee remains in possession and use of a part of the building, it is conclusive evidence as against him that it has not been destroyed, and that it is not untenantable or unfit for occupancy within the meaning of the act.

In order to give due weight and effect to these various considerations, which have been noticed, it must be taken to have been the true intention of the legislature to absolve the lessee, in cases contemplated •by the statute, from the payment of rent, provided he avails himself of the privilege given to quit and surrender possession of the leasehold premises arid of the land so leased or occupied. The reason and purpose of the law and the nature of the grievance it was designed to remedy forbid us, as the respondents have correctly argued, to construe the two clauses of the statute independent of each other, or to give the lessee the benefit of the relief from the rent except upon the condition of his quitting and surrendering the possession.

It remains, therefore, to be considered whether the defendants have quitted and surrendered such possession.

According to the evidence the defendants forwarded the key of the outer door to the store on the first story to the plaintiffs by express, and at the same time, September 30, 1869, advised plaintiffs of it by letter through the post office." Plaintiffs acknowledged the receipt of the letter under date of October 2, 1869, and absolutely refused to accept any surrender of the premises, or the key, upon the ground that the premises were not untenantable, and that, if they were, it was the fault of the defendants in consequence of their persistent refusal to allow the building to be protected against the consequence of the excavation on the adjoining lot. Plaintiffs also notified defendants that they, the defendants, would be held liable for all rent to accrue under the lease. If the surrender was complete in fact and sufficient in law, the reasons assigned by plaintiffs for their refusal to accept it are wholly immaterial. If incomplete and insufficient, defendants were not relieved by any of the grounds upon which plaintiffs based their refusal, or the manner of such refusal, from the necessity of" making an effectual surrender. The evidence further showed that the defendants had executed a written lease for the whole unexpired term of their own lease to one Fischer of the fourth and part of the third story of the building in question; that under this sublease, Fischer had entered into possession and was engaged in the manufacture of tassels and fringes upon said premises, and employed fifteen or twenty people in that business ; that at the time of defendants’ removal from the building, they left Fischer behind in the occupation of the parts leased to him, and that he remained in the occupation and full enjoyment of those parts for a month or two after the first day of October, 1869. It also appeared that defendants took no proceedings whatever to remove Fischer ; that the key sent by them by express was only the key of the store; that the entrance to the upper stories, occupied by Fischer, was by a separate outer door and stairway on Broadway, to which there was another and different key, and that no offer of this key was made to the plaintiffs. As Fischer’s title was good against the plaintiffs, and Ms continued occupation constituted, in judgment of law, possession by the defendants, the surrender made by the latter of the key of the store, leaving Fischer in possession, of the upper part of the building, was no surrender in law or in fact of the possession of the leasehold premises, and of the land covered by their lease within the meaning of the act of 1860. The defendants, therefore, continued liable on their covenant to pay the rent.

As a necessary corollary, defendants’ offer to prove that Fischer agreed to go out with the defendants, that pursuant to an arrangement made with him he had no longer any right to continue the occupation, and that they declined to receive rent from. Mm after their own ■ removal, were properly excluded as immaterial. ISTo agreement, understanding, or dealings between them and Fischer could amount to a quitting and surrender of the possession, so long as Fischer remained actually in, and so long as his possession was their possession and not the plaintiffs’.

The views so far expressed render it unnecessary to inquire whether or not the defendants were precluded by their refusal to allow the building to be shored up from invoking the benefit of the act of 1860.

The denial of defendants’ motion, at the trial, for leave to amend the answer by the insertion of a defense of fraud by plaintiffs in the procurement of defendants’ execution of the lease in question, was a matter not only resting in the sound discretion of the court, but perfectly proper under the circumstances. A motion for leave to set up a new and separate defense and to raise an entirely new issue, the granting of which would operate as a surprise upon the plaintiff, should never be allowed at the trial.

The judgment and order appealed from should be severally affirmed, with- costs.

Curtis and Sedgwick, JJ., concurred.  