
    Abram Blauvelt, Resp’t, v. Calvin C. Powell, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    1. Lease—Former action pending.
    In an action brought in November, 1888, to recover instalments of rent on a lease for months of September, October and November, the defense was former action pending. It appears that the pending action referred to was for instalments for subsequent months and it did not appear when it was commenced. Held, that the defense was not made out.
    
      2. Same—Eviction.
    A trespass by strangers is not an eviction. There must be dispossession by. a paramount title or by. the act of the landlord, or he or his servants must make the occupancy so annoying'and uncomfortable as to, justify a tenant in removing.
    Appeal from a judgment of the county court of Rockland, county, affirming a justice’s judgment .in fayor of plaintiff.
    
      Garrett Z. Snider, for app’lt; William E: Gowdey, for resp’.t.
   Barnard, P. J.

This action was originally, commenced before a'justice of the. peace,. The complaint-stated the cause of action be for rent of rooms in Nyack fór-'three ■ months, being the months of September, October and November, 1888. The leasing • was admitted as stated at fifteen dollars ■ per month, and that the rent was unpaid for three months. The defense ■ stated in the answer was former suit pending and. eviction.' ' The action was commenced on the 23d of November, 1888. There was offered in evidence a copy judgment roll of ■ the county court showing an action brought for rent of December, 1888, and January, Febru-. ary and March, 1889. This record was rejected because not duly certified. The paper is not returned and it is impossible.to say whether it was or was not certified so as to justify its introduction in evidence. It was proven that an action had been commenced for the latter months of the year, but the time of its commencement was not disclosed. The defense of a former action pending therefore fails. All the instalments due upon a contract must be included .in an action; but separate actions are legal for each-instalment, and it is manifest that this action was first commenced, and after all the instalments became, due for the remainder of the year the action in the county court was commenced. The defense of eviction also failed. The plaintiff’s lease only permitted the. use of apartments in a house, and the eviction consisted in the fact that independent parties and their workmen made nois.es and com mitted trespasses while erecting houses east and west of the house in which the demised premises were situated. A trespass by strangers is not an eviction. There must be dispossession by a' paramount title or by the act of the landlord, or he or his servants iriust make the occupancy so annoying and uncomfortable as to justify a tenant in removing from the same. The proof showed nothing to justify a conclusion of an eviction.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.  