
    COURT OF APPEALS.
    Theodore T. Edgerton, respondent, agt. Albert W. Page, appellant.
    Where a tenant remains in possession of the entire premises, his obligation to pay rent continues, and a defence of eviction is not available in extinguishment or suspension of the rent.
    
      Where, in an action upon a lease for rent, the defendant—the tenant—set up in' his answer a series of injuries to the premises during the term for which rent was claimed, caused by the wrongful acts of the plaintiff—the landlord,—held, ■ that such injurious acts were entirely independent of the contract of leasing, and were not connected with the subject of the action, and could not, therefore, be interposed as a counter-claim. (This decision affirms that of the New-York common pleas, S. 0. 14 Bow. 116.)
    
      December Term, 1859.
    This action comes before this court on appeal from the judgment of the general term of the court of common pleas for the city and county of Mew-York.
    . The action was brought to recover a quarter’s rent of the premises Mo. 8 Fulton street, in the city of Mew-York, becoming due for the quarter ending May 1st, 1855, at the annual rate of $1,500. The complaint alleged, in general terms, the hiring under a written agreement for one year from May 1st, 1854, with the privilege of one more year, and entry and occupation under the lease. The answer set out the lease in hcec verba, which imposed certain'restrictions upon the use of the premises, and then alleged that the privilege of renewal was one of the chief causes of its value. The answer then proceeded to set out divers causes of injury to the defendant, the circumstances, and the extent of the injury.
    ■ The plaintiff interposed a demurrer to the answer, assigning the causes seriatim. The issues of law were first heard at a special term of the court of common pleas (Judge Brady presiding). which court overruled the demurrer, with leave to the plaintiff to reply, &c.; rendering judgment to that effect. The plaintiff appealed to the general term of that court, which court reversed the judgment of the special term, and ordered judgment absolute for the plaintiff. From this judgment an appeal has been brought by the defendant to this court.
    . In the judgment of reversal, Ingraham and Daly, JJ., concurred, and Brady, J., dissented. The opinion of Brady, J., at special term, will be found published in 12 How. Pr. Rep. 58 ; and the opinions of all three judges, at general term, will be found in 14 How. Pr. Rep. 116.
    
      John G-raham, for appellant.
    
    I. A wrongful eviction of the tenant by the landlord from a part of the demised premises, suspends the rent (i. e. of the whole) until the possession is restored. (Christopher agt. Austin, 1 Kern. 216).
    II. The landlord cannot recover, on the agreement to pay-rent, a portion thereof, or any compensation for the part of the premises occupied by the tenant, while such eviction continues.
    “ The consequence of an eviction from part is not merely a discharge of the tenant from the rent, provided he abandons the residue (of the demised premises), but it is a discharge of the tenant from any rent or liability for the occupation of the residue during the term of hiring.” (Per Parker, J., Christopher agt. Austin, supra).
    
    In other words, when an eviction occurs, the tenant can abandon the premises, and so annul his obligation to the landlord altogether; or else, if he remains, the rent is suspended during the continuance of the eviction, subject to a revival of the tenant’s obligations when it has terminated, and the possession has been restored. In the case in hand, the answer shows that the eviction commenced with and lasted through the entire quarter for which rent was claimed. To render eviction from the premises a valid defence, it must have taken place before the rent became due. (Giles agt. Comstock, 1 Kern. 270,275.)
    III. The beneficial enjoyment of the premises is the consideration for the obligation to pay rent. A deprivation of this consideration is an eviction. (Christopher agt. Austin, supra, approving the language of Spencer, senator, in Dyett agt. Pendleton, from which Judge Daly dissented).
    IY. If the landlord creates or connives at the nuisance which divests the tenant of the beneficial enjoyment, or if he has any connection whatever with the nuisance, he loses his right to the rent. (Gilhooley agt. Washington, 4 Comst. 217).
    V. The answer shows that the defendant intended to, and Would have availed himself of the privilege of renewal in the leas'e, and so the plaintiff well knew. The legal effect of this is to make the lease a demise for two years—as much so as though it had been executed for that period at first. (Chretien agt. Doney, 1 Comst. 419 ; Pugsley agt. Aikin, 1 Kern. 494).
    So far as the plaintiff was concerned, he had created a term for two years. It was the defendant’s right'to shorten the term, and make it into one year. Affirming the lease, as the defendant did, as a lease for two years, he is to be regarded as having abandoned the demised premises in the middle of his term, compelled to do so by the plaintiff.
    VI. The matter of the answer was not only competent as a bar to a recovery, but also as a ground of counter-claim. (Code of Procedure, § 150).
    Judge Daly’s views upon this point will be found from fol. 78 to 85 of the return ; Judge Ingraham’s, at folios 89, 90. Their error consists in likening this case to one of a single isolated trespass on the part of a landlord against his tenant. There is hardly more connection between such a case and this one, than there would be between an assault and battery by a landlord upon his tenant, and the obligations of a landlord under his lease. There can be no doubt but that, in an action for rent upon the latter, damages for the-former could not be made the subject of counter-claim.
    This case falls directly within Gilhooley agt. Washington, supra. It presents a -nuisance or annoyance commensurate with the term for which rent is claimed, originating with the landlord and his agents or servants, and completely annihilating the beneficial enjoyment to which the tenant was entitled under the lease.
    1. The ground of counter-claim arises out of the contract or transaction set forth in the complaint. All the cases show that there is an implied obligation on the part of the landlord to abstain from such an interference with his tenant. He must neither spread his annoyance to the premises occupied by his tenant, nor must he use his own premises to the prejudice of the latter. This duty grows out of the very relation of landlord and tenant.
    2. The subject of the counter-claim is connected vxith the subject of the action. The subject of the action is the alleged agreement of the defendant to pay rent. The subject of the counterclaim is the duty of the landlord (the plaintiff) not to deprive the defendant of the beneficial consideration for which he undertakes to pay rent. Are not these two subjects connected ? Bo not the duties of the plaintiff and defendant go together ?
    Winchester. Britton, for respondent.
    
    
      First. There is no allegation in the answer which shows that the injury complained of resulted from any fault of plaintiff.
    For—
    ■ I. Nothing appears, showing that the evil complained of did not result from the improper condition of that portion of the pipes upon defendant’s premises, which was used by him (such pipes being common to both), there being no allegation that these pipes were exclusively used for account of the premises of plaintiff.
    II. It does not appear but that the condition Of the pipes actually existed when the tenancy commenced, and suffering it so to continue would be no eviction, nor would it constitute any basis for recoupment or set-off, or even an affirmative cause of action, there being no express covenant to repair in the lease, and none can be implied. (Speckels agt. Sax, 1 E. D. Smith's Rep. 253 ; Etheridge agt. Osborn, 12 Wend. 529 ; Taylor's Landlord and Tenant, §§ 327, 343.)
    
      .Second. Befendant cannot claim a reduction of the rent for any act of mere trespass by the landlord, diminishing his bene ficial enjoyment of the premises, not constituting an eviction.
    For—
    • I. The damages alleged do not arise out of the contract or transaction between the parties, nor are they connected with the subject of the action, and the acts complained of are as in dependent of the contract or transaction between the parties as any trespass or other act of force committed by a stranger upon the tenant. The landlord’s duty, claimed to have been violated, did not arise out of any contract between the parties, but that which the law imposes upon every member of community. Bamages for a wilful trespass by the landlord upon the tenant, cannot be the subject of set-off against a claim for rent, nor can-damages for a trespass, not constituting a breach of the contract declared on, be recouped; nor are they the subject of a counterclaim. (Cram agt. Dresser, 2 Sandf. S. C. R. 120, 127; Levy agt. Bend, 1 E. D. Smith, 169; Drake agt. Cockcroft, 10 How. Pr. 377 ; Mayor of New - York agt. Mabie, 2 Duer, 411.)
    II. There is no breach of the contract declared on, as the implied covenant for quiet enjoyment is at most only a warranty of possession under title in the lessor, and that the tenant shall enjoy such possession undisturbed (See Woodfall's Landlord and Tenant Law, 318), and is not broken by a trespass, but by an eviction only, or by an entry under an assumption of title. (Holden agt. Taylor, Hobert, 12 ; Levi agt. Stephenson, 5 Bing. N. C. 183 ; Woodfall's Landlord and Tenant Law, 412; Waldron agt. McCarty, 3 John. 472 ; Kertz agt. Carpenter, 5 id. 121; Etheridge agt. Osborn, 12 Wend. 529; Watt agt. Coffin, 11 John. 495 ; Levi agt. Bend, 1 E. D. Smith, 169; St. John agt. Palmer, 5 Hill, 601; Drake agt. Cockcroft, 10 How. Pr. 377 ; Dart's Vendor and Purchaser, p. 367, note; Mayor of New - York agt. Mabie, 3 Kernan, 151).
    
      Third. There are no facts alleged showing any entry, under. an assumption of title, by the landlord, nor an eviction, but, on the contrary, the answer shows there was no eviction; for—
    I. While it is admitted that if a tenant is evicted by the landlord from any part of the demised premises, the obligation, under the lease, to pay rent, ceases, and though the tenant occupy the residue of the premises, yet he incurs no liability for rent therefor under the lease, as such eviction debars the recovery of any rent until the possession of the whole premises is restored. (Smith agt. Raleigh, 3 Campbell, 513; Lewis agt. Payne, 4 Wend. 423; Terle agt. Terle, 24 Wend. 76; Lawrence agt. French, 25 Wend. 453 ; Dyett agt. Pendleton, 8 Cow. 731; Hegeman agt. McArthur, 1 E. D. Smith, 147; Christopher agt. Austin, 1 Kernan, 216; Taylor's Landlord and Tenant, pages 183, 184).
    II. And, while under the authorities, it may also be ad-, niitted that an actual entry and physical expulsion is not necessary to constitute an eviction; that it is enough that there is an interference by the landlord with, or a disturbance of, the tenant’s possession, depriving him of the beneficial enjoyment or use of the demised premises, rendering their further occupation impossible, or injurious beyond pecuniary computation and compensation. (Dyett agt. Pendleton, 8 Cow. 727; Ogilvie agt. Hull, 5 Hill, 52 ; Cohen agt. Dupont, 1 Sandf. S. C. R. 260; Taylor's Landlord and Tenant, p. 443; Cram agt. Dresser, 2 Sandf. S. C. R. 120; Campbell agt. Shields, 11 How. Pr. 565 ; Gilhooley agt. Washington, 4 Comst. 217),
    III. Yet, such interference or disturbance produces no eviction before the tenant leaves the premises. The tenant cannot be evicted and still occupy. To suppose that he can, involves an absurdity and a contradiction in terms. He must be put out of possession, expelled from either a part or the whole. (Hunt agt. Cope, Cowper, 242; Reynolds agt. Buckle, Hobart, 326; Jones agt. Boddington, Comberbach, 380; Burhall agt. Lechmere, 1 Raymond, 370; Buller's Nisi Prius, 177; Salmon agt. Smith, 1 Wm. Saunders, 204, n. 2 ; Harrison's Case, Clayton, 34; Roher agt. Seyd, T. Jones, 148; Page agt. Parr, Styles, 432; Cibels agt. Hills, 1 Leonard, 110; Arnold agt. Fort, 3 Keble, 453; Wilson agt. Smith, 5 Yerger, 399 ; Jackson agt. Eddy, 12 Missouri, 209 ; Cowie agt. Goodwin, 9 Carr. & Payne, 378; Dyett agt. Pendleton, 8 Cow. 727; Cram agt. Dresser, 2 Sandf. S. C. R. 120; Campbell agt. Shields, 11 How. Pr. 565; 3 Kent's Com. 464; 4th ed., note (7th ed., 574, note); Gilhooley agt. Washington, 4 Comst. 217; St. John agt. Palmer, 5 Hill, 599; Bennett agt. Bittle, 4 Rawle, 339. Also, other cases cited in opinion of Daly, Judge, in court below.)
    
    The true doctrine in this state, established by authority, is simply this: When there is an actual expulsion from the possession of the premises, or from any portion thereof, or such an interference with the beneficial enjoyment as to justify the departure of the tenant, and he abandons the possession before the expiration of his term, there is an eviction; but, where there is simply an intrusion upon the premises, or a destruction of property thereon, or an injury to the enjoyment resulting from molestation or disturbance, the tenant, still rétaining entire possession, there is only a trespass. Dyett agt. Pendleton —which is the leading case sustaining constructive eviction, and has gone to the verge. (See Ogilvie agt. Hull, 5 Hill, 52, and Gilhooley agt. Washington, 4 Comst. 219, 222),—decides no more than is laid down in the above proposition. (See Jackson agt. Eddy, 12 Missouri Rep. 209). General language, when used by the court, must always be understood with reference to the subject then before it. 3STo case of eviction can be found reported where the tenant was not deprived of the possession of the demised premises, or some portion thereof. In Dyett agt. Pendleton, the tenant left; and the reported opinions of the respective members of the court show that the question before the court was not whetheratenant could be evictedfrom, .and retain possession of, the entire premises, but whether he could be evicted without an actual entry and actual expulsion? (Opinion of Spencer, pp. 728, 734; opinion of Crary, pp. 735, 739).
    By constructive eviction is meant eviction by constructive entry and force, as contradistinguished from actual, physical entry and forcible expulsion, and relates to the manner in which the expulsion or eviction is accomplished, and not to the fact whether or not it was accomplished at all.
    IV. The tenant in this case did not leave until after the expiration of the term; and, by the terms of the contract, the rent had fallen due, and abandoning at such a time could constitute no bar to án action for the rent for that term. (McCarty agt. Hudson, 24 Wend. 293; Cohen agt. Dupont, 1 Sandf. S. C. R. 364; Whitney agt. McKeon, 3 Denio, 452; Lafarge agt. Halsey, 1 Bosw. 171),
    Y. But if defendant had left, there would in this case have been no eviction. There was no interference with the posses, sion, and no disturbance of the beneficial enjoyment, not en tirely capable of computation and compensation in damages as for any trespass. There was no expulsion, either moral or physical, and a mere molestation or disturbance constitutes no eviction. (Carpenter agt. Parker, 91 Eng. Com. Law Rep. 205, 242).
    
      Fourth. No damage can be claimed or recouped for breach of covenant of renewal, for there is no allegation of a demand, or refusal, to renew. Besides, if plaintiff had actually driven defendant from the premises at the túne alleged, it would have been no answer to an action for rent for the preceding term. (Etheridge agt. Osborn, 12 Wend. 529; Kessler agt. McConachy, 1 Rawle, 435; Giles agt. Comstock, 4 Comstock, 270; Lafarge agt. Halsey, 1 Bosw. 171).
   Grover, J.

The demurrer presents two questions: 1st. Whether the facts alleged in the answer constitute a defence ? 2d. Whether they constitute a counter-claim, available to the defendant by way of recoupment or otherwise, in this action ? The rule has long been settled, that a wrongful eviction of the tenant by the landlord, from the whole or any part of the demised premises, before the rent becomes due, precludes a recovery thereof until the possession is restored. (Christopher agt. Austin, 1 Kern. 217). Whether this eviction must be actual, by the forcible removal of the tenant, by the landlord, from the demised premises or a portion thereof, was not settled in this state until the case of Dyett agt. Pendleton, (8 Cow. 728.) In that case the principle was established by the court for the correction of errors, that when the lessor created a nuisance in the vicinity of the demised premises, or was guilty of acts that precluded the tenant from a beneficial enjoyment of the premises, in consequence of which the tenant abandoned the possession before the rent became due, the lessor’s action for the recovery of the rent was barred, although the lessor had not forcibly turned the tenant out of possession. Ever since that ease, this has been considered as a settled rule of law binding upon all the courts of this state. Such acts of the lessor, accompanied by an abandonment of the possession by the lessee, is deemed a virtual expulsion of the tenant, and, equally with an actual cxplusion, bars the recovery of rent. The reason of the rule is, that the tenant-has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord) and thus the consideration of his agreement to pay rent has failed.

In case of an eviction from a portion of the premises, the law will not apportion the rent in favor of the wrong-doer. In this case, the answer shows that the defendant continued to occupy the premises for the whole time for which the rent demanded accrued. In this the case differs from Dyett agt. Pendleton (supra). I cannot see upon what principle the landlord should be absolutely barred from a l’ecovery of rent, where his wrongful acts stop short of depriving the tenant of the possession of any portion of the premises. The injury inflicted may be to an amount much larger than the whole rent, or it may be of a trifling character. In all the cases where it has been held that the rent was extinguished or suspended, the tenant has been deprived, in whole or in part, of the possession by the wrongful act of the landlord, either actually or constructively.

There is no authority extending the rule beyond this class of cases. It would be grossly unjust to permit a tenant to continue in the possession of the premises, and shield himself from the payment of rent by reason of the wrongful acts of the landlord, impairing the value of the use of the premises to a much smaller amount than the rent. This must be the result of the rule claimed by the defendant. The moment it is conceded that the injury must be equal to the amount of the rent, the rule is destroyed. It would then only be a recoupment to the extent of the injury. In Ogilvie agt. Hull (5 Hill, 52), Nelson, Chief Justice, in giving the opinion of the court, says “ that no general principle is better settled or more uniformly adhered to, than that there must be an entry and expulsion of the tenant by the landlord, or some deliberate disturbance of the possession, depriving the tenant of the beneficial enjoyment of the demised premises, to operate as a suspension or extinguishment of the rent.” The rule contended for by the defendant is a very different one, suspending or extinguishing the rent whenever the enjoyment, in consequence of the tortious act of the lessor, becomes less beneficial than it otherwise would have been. The true rule from all the authorities is, that while the tenant remains in possession of the entire premises demised, his obligation to pay rent continues.

The remaining question is, whether a counter-claim, arising from the facts contained in the answer, is available to the defendant in this action ? By section 149 of the Code, the defendant is permitted to include in his answer new matter constituting a counter-claim. Section 150 defines the class of demands which are embraced in section 149. A counter-claim must be, 1st. A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action; or, 2d. In an action arising upon contract, any other cause of action arising also upon contract, and existing atthe commencement of the action. The demand of the defendant, set out in the answer, does not arise out of the contract set forth in the complaint. That contract is for the payment of rent upon a lease of the demised premises. The defendant’s demands arise from the wrongful acts of the plaintiff, in permitting water to leak and run into the premises, and in causing or permitting it to be thrown upon the premises and property of the defendant. These acts are entirely independent of the contract of leasing, upon which the action is brought. The demands are not connected with the subject of the action. That is the rent agreed to be paid for the use of the premises. The defendant’s demands are for a series of injuries to his property deposited upon the premises, and for impairing the value of the possession. It would be a very liberal construction to hold that, in an action for rent, injuries from trespasses committed by the lessor upon the demised premises, might be interposed as a counter-claim. The acts of the plaintiff in this case, are of a similar nature. They are either acts of trespass or negligence, from which the injuries to the defendant accrued. Such a construction could only be supported by the idea that the subject of the action was the value of the use of the premises. But when there is an agreement of the parties fixing the amount of rent, that value is immaterial. Unless the acts of the defendant amount to a breach of the contract of letting, they are not connected with the subject of the action.

In the case of The Mayor of New - York agt. Mabie (3 Kern. 151), it was held by this court, that a covenant for quiet enjoyment by the lessee was implied in a lease under seal for a term not exceeding three years, since, as well as before, the Revised Statutes; that this covenant was broken by interference with possession by the lessor, under a claim of right. Consequently, that damages sustained from such acts might be recouped in an action for rent. It was remarked by Dentó, Judge, in giving the opinion in that case, “that it is not, however, every mere trespass by the lessor, upon the demised premises, which will amount to a breach of this covenant. Although, the covenantor cannot avail himself of the subterfuge that his entry was unlawful, and he, therefore, a trespasser, to avoid the consequences of his own wrong, still, to support the action of covenant, the entry must be made under an assumption of title.” Dor this the learned judge cites Platt on Covenants, 319, 320. There is nothing in this case tending to show that any of the acts of the plaintiff were done under any claim of right whatever. They did not, therefore, amount to a breach of the contract created by the lease; and the injuries sustained by the defendant do not, therefore, constitute a counter-claim connected with the subject of the action. The judgment should be affirmed. 
      
       Note.—When the landlord, by Ms -wrongful acts, produces eviction as to part of the demised premises, it is such a disturbance of possession of the tenant, as to .the remainder, that the rent of the whole is suspended, although the tenant remains in possession of the remainder. This is so well settled by numerous authorities, that there can be no doubt about it. Now, this suspension of rent, as to the remainder of the premises, constitutes what wo call constructive eviction—nothing more, nothing less. Because eviction, whether by actual or constructive entry, is composed of two parts—first, entry; second, expulsion or dispossession. There may be a constructive entry, producing actual eviction or expulsion, as in the case of Dyett agt. Pendleton, and there maybe actual entry, producing constructive eviction or expulsion, as in the case first above stated; or there may be, since the decision in Dyett agt. Pendleton, a constructive entry, producing constructive eviction or expulsion, at least, as to a part of the promises; and our difficulty, briefly stated in a Note to tins caso in 14 How. 116, was, why the same entry, whether actual or constructive, which produced what wo call constructive eviction as to part of the premises, should not, with equal if not greater justice, be applied to the whole premises? In other words, why the injurious acts of the landlord, whether actual or constructive, which produces the tenant’s right to abandon, and in lavo an eviction as to a part of the premises, may not apply to the whole premises?
      We believe that, except the present case, there is no reported decision which raises this precise question. The court of appeals in this case, however, as appears from their published decisions, have not only considered the question beyond doubt, but so entirely clear, that the rule which gives the appellant the benefit of a dissenting opinion of the court below, as equivalent to a certificate of probable cause to save his mulct in damages on bringing the appeal, has not been allowed to have any effect, and ten per cent, on the amount of the recovery in the court below has been awarded the respondent. Some of the profession may (though we do not think the court entertained any such view), consider the damages awarded in the nature of a penalty, for presuming to go up on appeal from the judgment of a divided court.—[Rep.
     