
    Theodore T. Edgerton v. Robert W. Page.
    E. leased certain premises to P. for one year, with the privilege of a year’s renewal at the same rent. In an action for the last quarter’s rent of the first year, P. alleged, as a defence, that the plaintiff had maliciously and wantonly allowed large quantities of waste water to come down into the demised premises, greatly injuring his goods and compelling him to leave the premises at the end of the first year, thereby losing the privilege of renewal. The defendant having remained in possession of the premises during the entire year: held, on demurrer to answer, that these facts constituted no defence.
    
      f. They did not amount to an eviction. Every obstruction by the landlord to the beneficial enjoyment of the premises demised does not constitute an eviction. To constitute an eviction, the lessee must have been compelled to abandon the whole ^.-¿Sr some part of the premises by the wrongful act of the lessor.
    Ü. Ñor did they constitute a ground for a counter-claim or recoupment. Every act of the landlord, disturbing the tenant’s beneficial enjoyment of the demised premises, does not constitute the basis of a counter-claim or recoupment in an action for rent, but only such acts as amount to an eviction, total or partial, or an unlawful injury to the premises in violation of the contract of letting.
    They show merely a disturbance of the beneficial enjoyment of the tenant, but no interference with his possession.
    
      X trespass of the nature alleged, not made under an assumption of title, is no breach of the contract of letting — is not a cause of action arising out of the contract, upon which the landlord’s claim is founded — and therefore cannot be said to be connected with the subject of the action.
    A covenant for quiet enjoyment, expressed or implied in a lease, relates only to title, and not to the undisturbed enjoyment of the premises demised, when there has been no eviction or entry under assumption of title.
    
      Per Brady, J., dissenting: — A tenant has a right to abandon the demised premises at any time during the landlord’s continuance of the disturbance of his beneficial enjoyment of the premises. If the disturbance cease before the rent becomes due and while the tenant is still in occupation, the rent may bo recovered. If the disturbance continue during the whole period of that part of a term during which rent accrues, and down to the time when the rent becomes due by the agreement, and the tenant then abandons the premises in consequence of such disturbance, the rent cannot be recovered.
    Appeal by plaintiff from an order at special term, overruling a demurrer to answer. This action was brought to recover rent. Tbe plaintiff leased to the defendant the first floor of No. 8 Fulton. street, New York city, at a yearly rent of $1,500, for one year from the 1st of May, 1854, with the privilege of one year’s renewal at the same rate.. This action was brought to recover the rent clue for the quarter ending 1st May, 1855.
    The answer alleged that the privilege of renewal contained in the lease was one of the main inducements to defendant to take the lease, and one of the principal causes of its value; that the plaintiff occupied the entire upper part of the building No. 8, and also of the adjoining one, No. 10 ; and that, during the quarter for the rent of which this action was brought, he wantonty, maliciously and negligently permitted a certain waste-pipe, coming down through the rear of the building No. 8 Fulton street, and communicating with a sewer underneath, which waste-pipe was used for the purpose of carrying off the waste water fro^^ the upper stories of the buildings Nos. 8 and 10 Fulton street, the premises occupied by the plaintiff, to get out of order and leak, so that large quantities of the waste water and other filth flowed down through the ceiling and upon the floor of the demised premises, interfering with and depriving the defendant, in a great degree, of the beneficial enjoyment thereof, and injuring and destroying the property of the defendant; that the plaintiff knew these facts at the time, and might, by the exercise of ordinary care, have prevented the injury, but, though requested to repair the pipes, refused to do so; and that, in consequence of the injuries to the defendant’s business, occasioned thereby, he was compelled to abandon the premises about the first of May, and was thus wholly deprived of the privilege of renewal created by the lease. These facts, he claimed, amounted to an eviction, and he also claimed to recoup or set off the damages suffered, against the rent claimed, and claimed an affirmative judgment therefor.
    The plaintiff demurred to this answer. The demurrer was overruled, and the plaintiff appealed.
    
      Britton and My, for the appellant.
    I. There is no allegation which shows that the evil complained of-occurred from any fault of plaintiff; for,
    
      1. There is no covenant to repair contained in the lease“set forth in the answer.
    2. In the absence of such express covenant, there is none implied. Taylor L. & T., 327, 343.
    3. Nothing appears but that the evil complained of resulted fi’om the improper condition of the pipes upon the defendant’s premises, and used by him, as there is no allegation that these pipes were exclusively used for account of the premises above, nor does it appear but that it actually existed when the quarter commenced, and in fact when the lease was taken; and suffering it to be so would be no eviction, nor would it constitute any cause of action. ■ Speckels v. Sax, 1 E. D. Smith, 253; see Mheridge v. t^pjorn, 12 Wend. 529.
    II. Defendant cannot claim a reduction of the rent for any tortious act of the landlord, by which defendant was disturbed while in possession of the demised premises; for,
    1. These damages do not arise out of the contract between the parties, and the acts complained of are as independent of the covenants between them as any trespass or other act of force committed by a stranger upon the tenant. Cram v. Dresser, 2 Sand. S. C. E. 120,127; Levy v. Bend, 1 E. D. Smith, 169; Drake v. Cockcroft, 10 Howard’s Prac. 377 ; Mayor, &e., of New York v. Mahie, 2 Duer, 401.
    2. Damages for a wilful trespass cannot be the subject of set-off, nor can damages for a trespass, not constituting a breach of contract declared on, be recouped, and the counter-claim under the Code includes only what might thus have been set up under the old system. See same cases as above.
    3. There is no breach of the contract declared on, as in the absence of express covenants there is no covenant whatever implied, not even for quiet enjoyment. The word “demise” may imply a covenant for quiet enjoyment (see v. Adams v. Gibney, 6 Bingham, 656 ; 4 M. & P. 491; 1 Woodfall’s Tenants’ Law, 311); but a mere relation of landlord and tenant creates no such covenant. Granger v. Collins, 6 Meeson & Welsby, 4 58; Mayorf &c., of New York v. Mabie, 2 Duer, 401.
    
      “ Let” is not equivalent to “ demise.” Messeat v. Reynolds, 3 Man. Gran. & Scott, 194.
    4. If, however, there is such an implied covenant, a covenant for quiet enjoyment is, at most, only a warranty of title in the lessor, and that the tenant shall enjoy such title undisturbed (see Woodfall’s Tenants’ Law, 318), and is not broken by a trespass, but by an eviction only; or by an entry under an assumption of title. Holden v. Taylor, Iiobart, 12 ; Levi v. Stephenson, 5 Bing. N. 0. 183; 'Woodfall’s Tenants’ Law,412; Waldron v. McCarty, 3 John. 472; Hertz v. Carpenter, 5 ibid. 121; Etheridge v. Os- ■ lorn, 12 Wend. 529 ; Watt v. Coffin, 11 John. 495; Levy v. Bend, 1 E. D. Smith, 169 ; Brahe v. Coclccraft, 10 How. 377.
    III. There are no facts alleged constituting an eviction, TLOifrfi any assumption of title by the landlord; but, on the contrary, the complaint shows there was no eviction ; for,
    1. 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 occupies the residue of the premises, yet he incurs no liability for rent therefor under such agreement, as the eviction debars the recovery of any rent under said agreement, until the possession of the whole is restored. Smith v. Raleigh,] ¿k. Campb. 513 ; Lewis v. Payne, 3, 4 Wend. 423; Zule v. Zuk, 24 ibid. 76; Lawrences. French, 25 ibid. 453; Byett v. Pendleton, 8 Cowen, 731; Hegeman v. McArthur, 1 E. D. Smith, 147 ; Christopher v. Austin, 1 Kernan, 216 ; Taylor L. & T. 183, 184.
    2. It is admitted that an expulsion or physical eviction is not necessary to constitute an eviction; it is enough that there is an interference by the landlord with or a disturbance of the tenant’s beneficial enjoyment or use of the demised premises, intentionally committed and injurious in its character. Salmon v.ffimith, 1 Saund. 204; Hunt v. Cope, 1 Cowp. 242 ; Pendleton v. Byett, 4 Cowen, 581; Byett v. Pendleton, 8 ibid. 727; Ogilvie v. Hull, 5 Hill, 52 ; Cohen v. Bupont, 1 Sand. S. C. R. 260; Taylor’s L. & T. 443.
    3. But such interference or disturbance is not tantamount to an eviction before tbe tenant leaves tbe premises. Tbe tenant cannot be evicted and still occupy ; it involves an absurdity and a contradiction in terms. Tbe true doctrine is simply tbis: When there is an actual expulsion féom tbe premises or from any portion thereof, or such an interference with tbe beneficial enjoyment as to justify tbe departure of tbe tenant, and be abandons tbe premises before tbe expiration of bis term, there is an eviction ; but when there is simply an intrusion upon tbe premises, or a destruction of property thereon, or an injury to tbe enjoyment, tbe tenant still occupying tbe whole, there is only a trespass. Cases above cited ; Oram v. Dresser, 2 Sand. S. 0. B. 120; Campbell v. Shields, 11 How. 565 ; 3 Kent’s Com. 463, 4th note; Gilhooly v. Washington, 4 Comst. 217.
    4. Tbe defendant did not, in tbis case, leave until after tbe expiration of tbe term; and, by tbe terms of tbe contract, tbe rent bad fallen due, and leaving at such a time could constitute no bar for tbe rent for that term. McCarty v. Hudson, 24 Wend. 293; Cohen v. Dupont, 1 Sand. S. C. B. 264.
    IV. Nor could any damage be claimed or recouped for breach of covenant of renewal, for there is no allegation of refusal to renew. See Etheridge v. Osborn, 12 Wend. 529.
    
      John Graham, for tbe respondent.
   Daly, J. —

Tbe matters set up by tbe answer are relied upon, either as a bar to tbe action, or as establishing a clai.m for damages against tbe plaintiff, which may be set up in tbis action by way of counter-claim.

It is not denied by tbe answer — indeed, tbe answer admits— that tbe defendant continued to occupy during tbe whole period for which rent is claimed, and tbe first question presented is, whether a tenant, who thus continues in tbe occupation of tbe whole of tbe premises demised, is released from tbe payment of rent because tbe landlord has committed acts which have diminished tbe beneficial enjoyment of tbe premises during tbe period for which rent is sought to be recovered.

To occasion a suspension or extinguishment of rent, there must be an eviction of the tenant, and, as this was understood before the decision of Dyett v. Pendleton (8 Cow. 727), it meant that the tenant must be put out of possession either of part or of the whole of the premises demised. Co. Lit. 148, b ; Dorrel v. Andrews, Hob. 190, a ; Reynolds v. Buckle, ibid. 326, a ; Hodgson v. Robson, Vent. 276 ; Pollexf. 142 ; Trumbull v. Bullock, Styles, 446 ; Salmon v. Smith, 1 Wm. Saund. 204, and note 2 ; Hunt v. Cope, Cowp. 243. Thus the form of the plea, as given in Saunders, was, “ and expelled, and removed him, the said Samuel, from his possession thereof, and hept out him, the said Samuel, from his possession thereof.” This was the form of the plea in Dyett v. Pendleton (4 Cow. 584) ; and as some misconception has pr^j| vailed, as to what was actually determined in the ultimate disposition of that case by the Court of Errors, it may be well to review that decision.

To maintain the plea that the plaintiff had expelled him from the possession, the defendant offered to prove, upon the trial, that the plaintiff introduced, into the part of the house' which he occupied, lewd women and prostitutes at various times, keeping them all night for the purpose of prostitution; that he was in the habit of introducing other men, who, with himself, kept company with the women, and who together kept up such noise and disturbance throughout the night, using obscene and indecent language, so as to disturb the rest of persons sleeping in the part of the house demised to the defendant, in consequence of which the defendant was compelled to leave the house before the rent became due for which the action was brought.' It was held by the Supreme Court (4 Cow. 584), that the evidence was properly excluded; that there could be no eviction without an actual entry and expulsion; that the matter complained of simply amounted to a nuisance, which the defendant could have abated by applying to the police; that he was under no necessity, physical or moral, to abandon the premises; and that his abandonment was voluntary, and was no answer to the covenant for the payment of rent.

The decision of the Supreme Court was reversed by the Court of Errors (8 Cow. 729), and that judgment of reversal determined merely that proof of an actual entry was not essential to establish an eviction, but that, without an actual entry upon the premises, the landlord might be guilty of acts which, by compelling the tenant to quit the premises, would amount to an eviction, and that, upon the evidence excluded at the trial, the jury could have found that the defendant was justified in quitting the premises, and having done so, that he was released thereafter from any further liability under the covenant in the lease for the payment of rent.

This is all that I understand to have been decided by that case, though it has been supposed to have gone much further. Thus Savage, C. J., in Lewis v. Payne (4 Wend. 428), said, “ In Dyett v Pendleton, it seems to have been held that any obstruction, by the landlord, to the beneficial enjoyment of the demised premises, or a diminution of the consideration of the contract, by the act of the landlord,' amounts to a constructive eviction.” The only foundation for this opinion is to be found in one of the reasons assigned by Senator Spencer, who delivered an opinion for reversal, to show that actual entry was not essential to an eviction.

In referring to the rule, that a tenant, who has been evicted from part of the premises by the act of the landlord, is not obliged to pay rent for the part he retains until he is restored to the whole possession, Senator Spencer says, “As to the part retained, this is deemed such an injury to its beneficial enjoyment, such a diminution' of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent. Here, then, is a case where actual entry and physical eviction are not necessary to exonerate the tenant from the payment of rent; and if the principle be correct as applied to a part of the premises, why should hot the same principle equally apply to the whole property demised, where there has been an obstruction to its beneficial enjoyment, and a diminution of the consideration of the contract, by the acts of the landlord, although those acts do not amount to a physical eviction.”

But the ground bere taken, tbat any obstruction by tbe landlord to tbe beneficial enjoyment of -tbe premises demised, or diminution of tbe consideration of tbe contract, amounts to an eviction, was not essential to tbe decision of Dyett v. Pendleton. It is not, and never was tbe law, nor is tbe case an authority for any sucb proposition or principle. If any obstruction to tbe beneficial enjoyment, or diminution of the consideration of tbe contract, will exonerate tbe tenant from tbe payment of rent, then any act of trespass on tbe part of tbe landlord will have tbat effect; and it is well settled tbat something more than á mere trespass is essential to an eviction, however much tbe act of trespass, or successive acts of trespass, may obstruct tbe tenant in tbe beneficial enjoyment, or diminish tbe consideration of-feft contract.

Tbe title to rent,” says Bacon (6 Bac. Abr., Rent, L. 44), “is founded upon this, tbat tbe land demised is enjoyed by tbe tenant during tbe term included in tbe contract, for tbe tenant can make no return for a thing be has not. If, therefore, the tenant be deprived of tbe thing letten, tbe obligation to pay tbe rent ceases.” But it was held before Bacon’s time (Hawson’s case, Clayton, 34 ; 18 Vin. Abr., 504, tit. Rent [A a], pl. 11 ; Bushell v. Lechmore, 1 Ld. Ray. 369), and uniformly adhered to since, tbat a mere entry and trespass upon tbe land by tbe landlord is not sucb a deprivation, and will not suspend or discharge tbe payment of rent. In the first of these cases (Hawson’s case), tbe court held tbat tbe breaking of a partition wall by tbe landlord will not extinguish tbe rent, for there • must be a continuance of tbe possession and-a putting out of tbe lessee. In Vermilyea v. Austin (2 E. D. Smith, 203), I bad occasion to point out tbat Senator Spencer bad mistaken tbe reason of tbe rule, tbat eviction from part, by tbe act of tbe landlord, shall suspend tbe rent of tbe whole. It is not founded upon tbe diminution of the consideration of tbe contract, or tbe injury to tbe beneficial enjoyment; and this mistake led to the erroneous conclusion be arrived at. This rule, in respect to tbe soundness of which there was great contrariety of opinion before it was definitely settled and recognized (6 Bac. Abr. M 2), was founded upon tbe policy of tbe feudal law, by wbicb tbe landlord was bound to protect and defend bis tenant; and sucb being tbe obligation springing out of tbe relation, tbe landlord, wbo bad wrongfully dispossessed tbe tenant of part, would not be allowed to apportion bis own wrong, and recover rentero rata for tbe residue of tbe land, but tbe rent was suspended until the landlord fulfilled bis obligation, and restored tbe tenant to the possession of the whole. Co. Lit. 1, 486 ; Hodgkin v. Robson, Vent. 276 ; Pollexf. 142 ; Brooke Abr. tit. Extinguishment, 48 ; Roll. Abr. 938 ; 6 Bac. Abr. Rent, M 1, p. 49.

In Dyett v. Pendleton, tbe tenant abandoned tbe premises before tbe rent became payable, and all that was or can be said to ^bedecided by tbe case was, that to constitute an eviction it was not necessary that tbe landlord should actually enter and expel tbe tenant from tbe possession, but that be might be guilty of acts wbicb, by compelling tbe tenant to abandon tbe premises, would have tbe same effect as if there bad been an actual entry and a physical expulsion. In other words, that there might be constructive as well as mere physical eviction, wbicb was very well illustrated by Senator Spencer, by supposing that tbe landlord in that case bad converted tbe portion of tbe bouse wbicb be occupied into a small-pox or yellow-fever hospital, or bad made a deposit of gunpowder under tbe tenant, in wbicb case tbe abandonment of tbe premises by tbe tenant might become a matter of necessity, and bis expulsion accomplished as effectually as if-the landlord had entered and turned him out by force. “Whether,” says Crary, tbe other senator, wbo delivered an opinion in favor of reversing tbe judgment of tbe Supreme Court, “ it was an unnecessary and voluntary abandonment of tbe premises on tbe part of the tenant, or compelled by tbe moral turpitude of tbe landlord,- is tbe only question material to be considered.” In Jackson v. Eddy and others (12 Miss. 209), a case in many respects resembling tbe present one, and to wbicb I shall have further occasion to refer, it became essential to ascertain exactly what was determined by Dyett v. Pendleton, and tbe principle or rule established by that case is thus stated: “ Any act of tbe lessor, which defeats the enjoyment of the property by the lessee, is a good bar to the demand for rent, provided the lessee abandon the premises in consequence of such wrongful act of the lessor.” t

The Court of Errors, in establishing this doctrine of constructive eviction, made no change in-the law. They overturned no principle or rule established by previous decisions, but merely extended the application of an acknowledged principle, in a case which justified the extent to which they carried it. This was the view taken of the case by Nelson, J., in Ogilvie v. Hull (5 Hill, 54), and by Bronson, J., in Gilhooly v. Washington (4 Com. 219). It was entirely consistent with the existing law, to hold that a landlord, who compelled a tenant to abandon the premi$§^ demised, by acts which rendered the further occupation of them impossible, inconvenient, or useless, evicted the tenant as fully, to all intents and purposes, as if he had gone upon the premises and ejected him from the possession by force.

In Cohen v. Dupont (1 Sand. S. C. 260), the tenant left in consequence of a series of petty annoyances on the part of the landlord, which seriously injured the tenant’s business, and it was held to be an eviction. In Jackson v. Eddy, supra, the tenant occupied the store and cellar of a building, the upper part of which was occupied by the landlord as a grocery store, and the dripping from the salt, tar, &c., in the loft, or floor occupied by the landlord, passed through the floor into the store occupied by the tenant, upon his sugar hogsheads, brooms, &c. The tenant complained, and the landlord tried to prevent further injury by sprinkling sawdust on the floor above, which only stopped the leakage temporarily. The tenant left before the commencement of the last quarter, and sent the key to the landlord, who refused to receive it. The action was for the last quarter’s rent, and it was held that the tenant having abandoned the premises before the beginning of the quarter for which rent was claimed, in consequence of a disturbance of the beneficial enjoyment by the act of the landlord, the action could not be maintained, and the law upon the subject is thus succinctly stated by the court: “ The consideration of tbe lessee’s undertaking to pay rent is tbe quiet, peaceable, and indisputable possession of tbe premises leased, and is, in its nature, a condition precedent to tbe payment of rent. If tbe lessor, by any wrongful act, disturbs that possession, which be should protect and defend, be thereby forfeits bis right, and tbe lessee may abandon tbe possession of tbe premises leased, and thereby exonerate himself from liability to pay rent.”

In all these cases the tenant abandoned the premises, and thereby discharged himself from all further liability for rent, but no case has ever gone the length of holding that a tenant, disturbed in the beneficial enjoyment by the act of the landlord, may continue in the possession of the whole premises, and be exempt jjfj^rn the payment of rent. There must be an eviction of the whole or of some part, and there can be no eviction, if the tenant continues in the possession of the whole, however much he may be disturbed in the beneficial enjoyment. For that disturbance, as has been already shown, the landlord is liable as a trespasser, but it does not put an end to the contract. Every eviction includes an ouster' either of the whole or of some part. 6 Bac. Abr. by Bayley, note 44 ; 1 Lord Ray. 369. It must amount to a deprivation of possession. The possession must be given up by the tenant in consequence of the acts of the landlord, and they must be acts which warrant and justify the tenant in so doing, or the landlord must have taken the possession forcibly from the tenant. In short, there must be a change of possession. It must be out of the tenant, and in the landlord.

This is manifest upon referring to the early cases. In Cibel v Hills (1 Leon. 110 ; 18 Vin. Abr. Rent, 1, pl. 2, p. 513), it was held that the possession must be in the landlord to suspend the rent. In Reynolds v. Buckle (Hob. 326, a), the defendant pleaded that before rent due the plaintiff did enter upon him, but did not say that he did expel him or hold him out,” and it is said, in the report of the case, that, as a plea in bar, it was insufficient. In Jones v. Boddinger (Comb. 380), it is said, expulsion makes the first part of the bar, and holding out the rest. In Arnold v. Foot (3 Keb. 453), the plea was declared bad, because it is not said expulit or amovit, nor that the plaintiff continued in possession, as it ought to be, being pleaded by way of suspension, and in Hunt v. Cope (Cowp. 243), Aston, Justice, said: “ All tbe cases in tbe books suppose tbe lessee to be put out of possession; therefore, merely saying that' be is deprived of tbe enjoyment of tbe premises is not sufficient,” and tbe plea was held no bar. Tbe distinction which runs through all tbe early cases, that it is tbe deprivation of tbe possession of tbe whole, or of some part, by tbe wrongful resumption of it, on tbe part of tbe landlord, which works the suspension or extinguishment of rent, has been recognized and acted upon in several American cases. Briggs v. Hall, 4 Leigh, 485 ; Jackson v. Eddy, supra ; Bennett v. Bittle, 4 Rawle, 339 ; Cram v. Dresser, 2 Sandf. S. C. 120 ; Wilson v. Smith, 5 Yerme, 399. In this last case, it is said, an interference by the lana-' lord, unless tbe tenant be wholly evicted and expelled from the possession, is not a discharge from tbe payment of the stipulated compensation; but makes the enteren, upon bis possession, a trespasser liable to make satisfaction for tbe damages in the appropriate action,” and it was further remarked, that the relation of tenant continues as long as tbe tenant continues to hold the possession. Sometimes tbe distinction between a mere trespass and an eviction is very nice ; as in Briggs v. Hall, supra, where the landlord entered upon a farm he had demised to the tenant, and mowed the meadow land. This was held to amount to an eviction, because the principal enjoyment and possession of a meadow land is the taking and using the hay, and tbe man who docs this is to every rational purpose the possessor. This was an extreme case for declaring that the possession of part of the premises demised was in the landlord, and not in the tenant, but it shows that this change of possession must take place, or there is no eviction. In tbe case before us tbe defendant remained in possession, until the full end of the term, for which rent is claimed. He has not, therefore, been evicted, and his answer is no bar to tbe action for rent. The acts of which he complains would entitle him to maintain an action against the plaintiff, equivalent to what was formerly denominated an action on the case, and it only remains to consider whether this cause of áction can be set up in this suit, by way of counter-'claim.

He claims that he sustained damage to the amount of two hundred and fifty dollars, in the hindrances, obstructions, delay and difficulties occasioned to, in, and about the prosecution of his business, and further sets up, that during the quarter in question large quantities of water were poured and thrown out of the rear windows of the plaintiff, wantonly, maliciously and negligently, by the plaintiff and his servant, so as to run into and upon the premises leased to the defendant, whereby his property there deposited, consisting of fruits and other articles, was injured and destroyed to the amount of one hundred and fifty dollars. Is cause of action arising out of the contract, which constitutes the foundation of the plaintiff’s claim in this action, or is it connected with the subject of the action within the meaning of the 150th section of the Code ?

Before the last amendment of this section, we held, in Levy v. Bend (1 E. D. Smith, 169), that damages for a tortious intrusion upon the demised premises, by the landlord as a wilful trespasser, not constituting a breach of the contract declared on, could not be set up, by way of recoupment, in an action brought to recover the rent, and after the section was amended in its present form, we held in Drake v. Cockcroft (4 E. D. Smith, 34), that in an action, by a landlord to recover rent, the tenant could not set up, as a counter-claim, a mere trespass upon the demised premises, and destruction of personal property committed by the landlord. In that action the answer set up that the defendant occupied a stable which constituted a part of the premises demised, and that the plaintiff, during the defendant’s temporary absence, broke open the stable, and wilfully took and removed the personal property of the defendant therein, which was injured, destroyed and lost to the defendant. We held, that as a cause of action, this was wholly independent of the contract for the payment ol rent. That the trespass for which damages were claimed could not be regarded as connected with the contract nor with the subject of the action, which was money due upon a contract of hir-lag ;• but it was admitted by Judge Woodruff, that an interference with the possession, an eviction, total or partial, or an unlawful injury to the premises in violation of the contract of letting, might, under a liberal construction of the Code, constitute a counter-claim.

The answer in this case shows a disturbance of the beneficial enjoyment, but no interference with the possession. Any trespass upon the premises demised is a disturbance of the beneficial enjoyment, but an interference with the possession'is either, an entry under color of right or assumption of title, or an absolute deprivation of the possession in whole or in part. The answer does not show an eviction, total or partial, or any unlawful injury to the premises in violation of the contract. There, is implied in the contract, being a demise or letting for a yeaS^a covenant for quiet enjoyment (The Mayor of N. Y. v. Mabie, 3 Kern. 151), but a covenant for quiet enjoyment, whether express or implied, relates only to title, and not to the undisturbed enjoyment of the premises demised where there has been no eviction, or entry under assumption of title. Howard v. Doolittle, 3 Duer, 474 ; The Mayor of N. Y. v. Mabie, supra ; Lloyd v. Tomkins, 1 T. R. 671 ; Platt on Covenants, 312 to 320. Nothing of this kind appears by the answer. It sets up a trespass not made under an assumption of title, nor resulting in an eviction, and, therefore, no breach of the contract of hiring. It is not, then, a cause of action arising out of the contract, and as the contract is here the subject of the action, it cannot be said to be connected with the subject of the action.

The judgment of the special term should be reversed, and judgment given for the plaintiff on the demurrer.

INGRAHAM, First Judge. —

I concur with Judge Daly in the opinion that the matters set up in the answer do not constitute an eviction which either suspends or extinguishes the rent sued for. Down to the period when the rent became due, the defendant remained in full and sole control of the demised premises. The plaintiff neither took possession of any part of the premises, nor did tbe defendant abandon them prior to that time. The acts of the plaintiff which are complained of were mere trespasses, for which the defendant could have recovered his damages; but they did not amount to an eviction, nor would they, in my judgment, have authorized an abandonment of the premises. But whether they were sufficient to justify the abandonment or not, the defendant did not leave the premises, and therefore cannot claim to be relieved from the payment of the rent of premises which he had the entire use of during the whole term. The election not to renew a lease, which he had alone the right to determine, cannot be considered as an abandonment of premises so as to cause a suspension of rent which had accrued during the prempus term.

The case of Cohen v. Dupont (1 Sand. S. C. R. 260) does not conflict with these views; because, if the cause of offence there was sufficient, the tenant actually left the premises before the rent became due.

The defendant sets up in his answer facts showing that during the term the plaintiff committed acts injuring his quiet enjoyment of the premises. Upon the argument of this case, I supposed these matters, set up by way of counter-claim, were not within the provisions of the Code on that subject, and were liable to the same objections as were stated in Levy v. Bend (1 E. D. Smith, 169) and Drake v. Cockcroft (4 E. D. Smith, 34). I do not see anything, on further examination, to change that opinion. In those cases, we held that a mere trespass by the landlord, which did not deprive the tenant of his possession, was not a breach of the covenant of quiet enjoyment; and that it was necessary, to establish a right to recover for such a cause of action, to show, that the tenant was deprived of some part of the demised premises. In St. John v. Palmer (5 Hill, 599), Judge Bronson says, “ If the covenantee retains the possession, it is impossible that there should have been an eviction, and no action will lie, however hard the case may be.

Judgment at special term should be reversed.

Brady, J. —

I still acibere to tbe opinion, expressed by me on tbe decision of tbe demurrer in tbis action, tbat tbe answer sets up facts wbicb are admitted to be true, and wbicb constitute a defence to tbis action. I also adhere to tbe opinion tbat tbis case is a mucb stronger one for tbe application of tbe doctrine of 'constructive eviction than Cohen v. Dupont (1 Sand. 260), stated in tbe opinion referred to. My understanding of Judge Daly’s opinion is, tbat tbe defendant not having abandoned tbe premises during the quarter, be was not evicted constructively or otherwise, and is not discharged. In answer to tbat view, I state tbat, by tbe lease, tbe defendant was entitled to a renewal of bis term, wbicb be abandoned because of tbe acts set up in tbe answer ; and tbat if there was no abandonment during tbe quarf%-for wbicb tbe rent is alleged to have accrued, there was an abandonment of tbe premises for tbe further term to wbicb tbe defendant was entitled. I am not aware tbat any case has yet arisen in tbe courts, deciding tbe question directly as to when and under what circumstances tbe defendant must abandon tbe premises, to make an eviction perfect; although I think tbat in tbis case, as I have already stated, there was in fact an abandonment of tbe premises. I understand a tenant to abandon premises if he leave them before his term expires, or bis right to possession ceases, without reference to tbe precise time when tbat abandonment takes place. I also understand the abandonment to be perfect when a tenant, having a' right to a further term, leaves tbe premises upon tbe expiration of tbe original term, and that the rent accruing cotemporaneously with such abandonment does not change tbe relative rights and obligations of landlord and tenant, as they existed immediately prior thereto. Tbe law does not regard tbe fractions of a day. It seems to be con ceded, tbat if the premises are abandoned before tbe rent becomes due, tbe eviction would b§ accomplished without reference to the part or portion wbicb bad expired of tbe period for wbicb tbe rent is claimed. In tbe case of Jackson v. Eddy and others, .cited by Judge Daly, tbe landlord tried to prevent further injury to bis tenant from tbe - causes complained of, and did so temporarily. In this case, tbe landlord neither did nor attempted to do anything, although often requested; but wantonly, maliciously and negligently permitted the continuance down to the first of May, when the rent became due, of the injurious acts complained of. It presents, therefore, a very different state of facts on the merits. The case referred to is not in point on the question here censidered, in my judgment, although it shows an eviction to have resulted from acts of the landlord that were neither wanton nor malicious, and although he essayed to obviate their injurious consequences. ’Here, however, the plaintiff acted wantonly and maliciously. He knew of the disturbance complained of, and made no effort to remove or prevent it. On •^.contrary, he wantonly permitted it to continue, and acknowledges not only that he did so, but that the defendant, his tenant, in consequence thereof, was compelled to abandon the premises and lose the benefit of his renewal. The defendant did not abandon the premises during the quarter, but he did during the continuance of the disturbance, which had not ceased, but was still kept up, down to the time of such abandonment, wantonly and maliciously; and hence the conclusion, in my opinion at special term, that the rent in cases like the present is suspended only during the continuance of the acts complained of, unless the tenant abandon the premises whilst they continue and before the rent accrues, in which case they become a bar. It follows, from this, that if the disturbance cease before the rent becomes due and while the tenant is still in occupation, the rent may be recovered ; and, with equal propriety, that if the disturbance continue during the whole period of a part of the term, during which rent accrues and down to the time the rent becomes due by the agreement, the rent cannot be recovered, inasmuch as his right to abandon continues down to the very moment he does so, and more especially, as in this case, where he abandons the premises and a term thereof.

For these reasons, I think the judgment at special term should be affirmed.

Judgment reversed.  