
    BARNUM v. FITZPATRICK.
    
      Fifth Civil District Court of New York City;
    
    
      October, 1891.
    1. Leasel\ A lease containing a covenant requiring the tenant to fulfill the ordinances of the city applicable to the property; and the orders and requirements of the board of health and police department for the correction, prevention and abatement of nuisances or grievances, does not require the tenant to comply with an order or requirement of the fire or building department to repair or remove an unsafe building.
    
    
      2. Landlord a7id Te7ia/it.~\ A mere notice from the building department of the city of New York that a building is unsafe, is insufficient to justify an entry upon leased premises by the landlord to make alterations in compliance with the notice, in absence of any covenant in the lease authorizing such entry or anything to show that the notice of the building department was necessitated by the actual condition of the premises. So-held, where no proceedings have been taken by such department pursuant to the Consolidation Act, §§ 510, 511, to obtain a precept to compel repair or removal upon establishing the-unsafe condition of the building.
    3. The same.] Where a landlord unjustifiably tore up the rear part. of the shop occupied by his tenant, throwing the rubbish in front of the premises ; pulled down a rear building, allowing-the materials to remain in the yard ; cut off the water pipes from the upper stories of the front building, and generally placed the premises in a condition which compelled the tenant to cease business and to meet with a refusal on the part of his. under tenants to pay rent.—Held, the landlord’s acts amounted to an eviction.
    4. The samel] A tenant may refuse to pay any rent, although he. has only been partly evicted and continues to occupy the remainder of the premises.
    ■5. Summary proceedings.] Where partial eviction of a tenant by a. landlord has worked a suspension of the rent, the landlord cannot maintain summary proceedings to recover possession of the premises for its non-payment.
    Summary proceedings brought by Sarah E. Barnum and another to recover premises leased to John. Fitzpatrick for non-payment of rent.
    The tenant set up as a defense an entry upon the-premises by the landlord amounting to an eviction.. The landlord sought to justify the entry by showing that it was made in compliance with an order of the-building department to remove and alter unsafe buildings upon the premises, and claimed by the covenants-of the lease the tenant was bound to comply with th& orders of that department.
    Only a notice was shown to have been given by the-building department without any proceedings having-been taken to establish the unsafe condition of the-buildings, and to compel their removal or alteration under the Consolidation Act,§§ 510, 511; nor was there any evidence to show that the notice was justified by the actual condition of the premises.
    The covenants of the lease as to tenants’ care of the premises was as follows :
    “ 2nd. That the Tenant shall take good care of the house and its fixtures, and suffer no waste: and shall at his own cost and expense, make and do all repairs required to the plumbing work and pipes, furnace, range, and fixtures belonging thereto, and shall keep the Croton pipes and the connections with the Croton main, free from ice and other obstructions at his own expense. And the Tenant shall keep the sewer connections free from obstructions to the satisfaction of the municipal and police authorities, and not call upon the party of the first part for any disbursements or outlay during the hereby granted term ; and at the end or other expiration of the term shall deliver up the demised premises in good order and condition, damages by the elements excepted.”
    “That the tenant shall pay the Croton Water tax imposed on the hereby demised building, in each and every year during the hereby granted term except the house water tax.”
    “ That no improvements or alterations shall be made in or to the hereby demised building, without the consent of the landlord in writing. All improvements made by the tenant to belong to the landlord, at the expiration of the hereby granted lease.”
    3rd. That the tenant shall further and promptly execute and fulfill all the ordinances of the city corporation applicable to said premises ; and all orders and requirements imposed by the Board of Health and the Police Department, for the correction, prevention and abatement of nuisances or other grievances in, upon or connected with said premises during said term, or other grievances, at his own expense.”
    The further facts are fully stated in the opinion.
    
      
      Hatch & Warren, for landlord,
    
      Frank Moss, for tenant.
    
      
       The following form of covenant covering this subject by a general clause is from a recent precedent, for which I am indebted to Messrs. Hoppin & Berard, of this city:
      “ Will pay the regular annual rates for water and all other charges for water and for steam and electricity, if any, within one month after the same shall become due respectively, and will put and keep the said premises and appurtenances in good order, security and repair, and make all repairs fully equal to the original work in quality of material and workmanship ; and will promptly comply with and fully execute any and all laws, orders and regulations of any of the State, county or municipal authorities affecting said premises or appurtenances, and will promptly pay all fines and penalties for failure to comply with and execute the same.’’
      The principal provisions of the consolidation act under which the various city departments may require the repair or removal of buildings or the alterations of premises, and to which a lease therefor may properly refer, are as follows: The police department has power to enforce the city ordinances (§ 252), and has special control over steam boilers (§§ 310-313).
      
        The fire department has charge of the regulations for the prevention of fires, storage of combustible materials and the keeping of ashes (§§ 452-462). It is provided that in enforcing these regulations all the expenses of any removal or alteration shall be paid in the first instance by the occupant, but shall be charged against the owner and deducted from the rent, unless the expense was rendered necessary by the act of the occupant, or there is a special agreement to the contrary between the parties (§ 463). Erection of fire escapes and the keeping of them in repair is chargeable upon the owner of the premises (§ 499).
      The board of health may declare any building, erection, excavation, premises, business, pursuit, matter or thing, or the sewerage, drainage or ventilation thereof, the condition of which is dangerous to health, to be a nuisance and order its abatement or removal (§ 535). It may order the repair of a building (§ 538). Both owner and occupant are liable for the violation of the sanitary code of the board of health (§ 576). The expenses attending the execution of any. order of the board of health are several and joint personal charge against the owner or lessee, and against every person who is bound by law or contract to do the thing required, and such expenses are a lien on the rents (§ 630). The board of health may maintain a suit for the expenses and only one or more persons liable may be made parties. But the persons sued may be made to contribute among themselves according to their equitable and legal rights (§ 631). Such expenses may also be made a lien on the land (§ 632). The board of health is charged with the enforcement of the following regulations relating to tenements and lodging houses : Limit as to number of occupants (§ 649). Provision for ventilation and ventilators (§ 650). Repair of roofs and stairs (§ 652). Number of water closets. Connection with sewer. Owner and occupant must take adequate measures to prevent improper substances entering water closets, sinks, etc., and secure their prompt removal (§ 653). Occupation of cellars (§§ 654, 655). Garbage and refuse receptacles must be provided (§ 656). Tenements must be kept clean (§ 657). Disinfecting in case of infectious disease (§ 658). The board may order an unsafe or infected building to be vacated (§ 659). The owner is prii7ia facie liable for the penalties for a violation of the above provisions in preference to the tenant (§ 665).
    
   Goldfogle, J.

The lease contained a covenant requiring tjie tenant to fulfill the ordinances of the city corporation, applicable to the property; the orders and requirements of the Board of Health and|the Police Department, for the correction, prevention or abatement of nuisances or grievances in or upon said premises. It is nowhere provided that the tenant shall comply with or execute any order or requirement of the Fire or Building Departments.

It does not appear by the proofs before me that, before the acts of alteration were begun, the premises were in a condition requiring the interference of the Building Department, nor have any facts been established which would have justified that department in directing the making of repairs.

It is evident that the landlord’s agent in entering upon the premises did so because of some notice from the Building Department, but if he did it in consequence of some notice from the Plealth Department, the case still stands barren of proof that such latter department made a lawful order or was justified in directing such repairs. Bare of this proof and free from any covenant requiring the tenant to comply with any of the orders of the Building Department, and from any lawful requirement of the Health Board, the acts of the landlords done through their conceded agent, stand unjustified and constituted wrongful acts to the tenant’s possession.

If these acts were of trespass merely I should have no difficulty in disposing of this case. The case of Edgerton v. Paige (20 N. Y. 281) is authority for holding that where the amount of rent is fixed and the wrongful acts of the landlord are acts of mere trespass, the defense of eviction is unavailable. This has always been the rule in this State, and unless there was some deliberate disturbance of the possession which deprived the tenant of the beneficial and substantial enjoyment of the demised premises, his obligation to pay rent continued, and he would be relegated to his remedy against the landlord for damages for the trespass. So far, then, I agree with the learned counsel for the landlord, and but" two questions remain to be determined.

First. Was there such a substantial deprivation of the tenant’s possession as amounted to an eviction? It appears that the rear part of the tenant’s store was torn up, some of the beams were taken out, the rubbish thrown in front of the store, the water pipes cut off from the upper floors, preventing the tenants from using the water, a rear building which formed part of the demised premises torn down and destroyed, the materials therefrom left in the yard, and the premises generally placed in a condition which compelled the tenant to cease his business and to meet with refusal on the part of the under-tenants to pay their rent. All this is not denied, and these acts, unless legally justified, amounted to an eviction.

Second. Did the tenant preclude himself from setting up the defense of eviction because of his failure to surrender the residue of the premises, the occupancy of which he retained ? Upon the argument before me I was rather inclined to the opinion that under the circumstances of the case the defense of eviction could not be set up, but a very careful examination of the question and a close review of the authorities cited, on the elaborate briefs submitted, lead me to the opposite conclusion.

In Christopher v. Austin (11 N. Y. 216) the learned Judge delivering the opinion of the court of appeals, stated the rule to be that if the landlord enter wrongfully upon, or prevent the tenant from the enjojunent of a part of the demised premises, the whole rent is suspended until the possession is restored, and in approving the rule laid down in Dyett v. Pendleton (8 Cow. 731) that “ as to the part retained this is deemed such a disturbance, such an injury to its beneficial enjoyment, such a diminution of the consideration upon wrhich the contract is founded, that the law refuses its aid to coerce the payment of any rent.” The judge continued to'say : “ It would Be a palpable evasion of the rule, and of the penalty the law imposes upon a landlord for a wrongful eviction, to hold that he may recover for use and occupation on a quantum meruit when he is not permitted to recover on the agreement itself.”

The same judge said, and the opinion had the concurrence of the entire court: “ I suppose that it is thó right of the tenant, under such circumstances, to remain in possession of the residue during the term, and that he can be neither made liable on the original lease nor in an action for use and occupation, unless he holds over after the expiration of his term ” (Ibid. 220). And though in Engerton v. Page, the court said that while the tenant remains in possession of the entire premises demised, it did not vary the rule that where he was deprived of the possession of part of the premises, he was not bound to pay for the possession of the residue until possession of the whole was restored.

The cases of the Buffalo Stone and Cement Company v. Radsky (14 N. Y. S. R. 82), Carter v. Byron (49 Hun, 299), People v. Gedney (10 Hun, 151), and Johnson v. Oppenheim (43 How, Pr. 433) are all clear for holding the rule to be as laid down by the court of appeals in Christopher v. Austin.

The case of Dyett v. Pendleton (8 Cow. 731), laid down the principle that a tenant shall not be required to pay rent even for-.the part of the premises which he retains if he has been evicted from the other part by the landlord, and I am cited to no case which holds a contrary doctrine. If a landlord, whose duty it is to ensure as against himself and those claiming under him a quiet and peaceable possession to his tenant, takes away a portion of the premises from his tenant, he mustmot complain when the tenant refuses to pay the rent until the possession of the entire premises is restored to him.

The acts of the landlord in this case having worked a suspension of the rent, he cannot maintain this proceeding because it would only be another mode of permitting the recovery of rent or the coercion of its payment, which the law will not permit. The proceedings, therefore, must be dismissed.  