
    George C. Carter, Resp’t, v. John H. Byron, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25. 1888.)
    
    1. Landlord and tenant—Eviction—Liability op tenant.
    A wrongful eviction of a tenant from a part of leased premises suspends the whole rent until possession is restored; there can he no apportionment.
    2. Same—Remedy op tenant.
    The tenant is not hound to vacate the premises. He holds them by agreement and can stay, relying upon his agreement, and recover damages if the agreement is broken.
    
      Appeal from a judgment in favor of the plaintiff, entered upon a verdict rendered at the county court of Westchester county, and from an order denying a motion for a new trial upon the judge’s minutes. The facts are stated in the opinion.
    
      P. L. McClellan, for app’lt; Sandford & Stilwell, for resp’t.
   Barnard, P. J.

The plaintiff hired of the defendant a dwelling and lot 50x105 feet, for one year, from the 1st of April, 1887, to the 1st of April, 1888, at twenty dollars per month, payable in advance. About the middle of May, 1887, the defendant erected a fence in front of the premises in the place of the old fence, but cut off 17x105 feet from the lot leased to plaintiff. The'premises were leased for laundry purposes to tne knowledge of the landlord. The cutting off the land in question destroyed four out of the five lines used by the plaintiff for his business in drying and bleaching clothes. The plaintiff protested against the trespass, but it was carried out, notwithstanding his protests. He sought to hold back the rent because of the fencing away of his land; but proceedings were taken to dispossess him, and he paid the rent under an agreement with the plaintiff’s agent; that the only way to do was to pay the rent “and proceed against ” the defendant for the wrong done. Upon the trial the only question of fact presented was whether or not the Ílaintiff consented to the building of the fence when it was uilt. The jury have found that he did not and this agrees with the evidence. The only consent, it is apparent, was that a new fence be put in place of the old one and that he should still have the 50x105 feet. The damages are not so clearly proven to the amount found, but stiff, I think, sufficiently under the circumstances of the case.

The rent was twenty dollars per month, of which eight months had been paid. The laundry business had been destroyed in efficiency by four-fifths. The amount of the loss is not specifically proven. The rent could not be collected while an eviction of part of the premises existed. The plaintiff is not bound to vacate the premises. He holds them by agreement and can stay, relying upon his agreement, and recover damages if the agreement is broken. A wrongful eviction from part of the premises suspends the Tent; there can be no apportionment. The whole rent is suspended until possession is restored. Christopher v. Austin, 11 N. Y., 216.

The trespass was willful. It was done in defiance of the plaintiff. The premises were destroyed as laundring premises; $160 rent had been paid. The amount of the verdict of $200 was, therefore, fairly proven.

Judgment affirmed, with costs. ' '

Pratt and Dykman, JJ., concur.  