
    The George A. Fuller Co., Appellant, v. The Manhattan Construction Co., Respondent.
    (Supreme Court, Appellate Term,
    June, 1904.)
    Action, on a lease, for rent—Eviction necessary to a breach of a covenant of quiet enjoyment — Eviction when a defense to rent — A tort is not a proper counterclaim, in such an action.
    To constitute a breach of a covenant of quiet enjoyment, contained in a lease, there must be an actual eviction, or- a constructive eviction and the latter cannot be deemed to have occurred unless there has been a surrender.
    
      To constitute a defense to an action' for rent the eviction must take place before the rent bécomes due.
    Allegations of an answer, interposed by a tenant to a complaint for rent, that because it was due and unpaid the landlord threatened him and prevented him from removing' his property from the demised premises, sound in tort and damages "therefor cannot be counterclaimed by the tenant in this action.
    Appeal by the plaintiff from an interlocutory judgment of the City Court of the city of New York, overruling the demurrer of the plaintiff to the amended answer to the amended complaint and to the counterclaim contained therein.
    John B. B. Fiske, for appellant.
    Henry J. McClelland, for respondent.
   Scott, J.

The complaint alleges the incorporation of the plaintiff and the defendant; that the plaintiff was the lessee of a certain building; that on May 23, 1903, the plaintiff leased to the defendant two rooms in said building for the period of eleven months, ending May 1, 1904; that the rent for the months of November and December, 1903, and January, February and March, 1904, became due and were demanded, but the plaintiff has refused to pay the same. The answer denied on information and belief the incorporation of plaintiff, and that it was lessee of the building, and denies the allegations of paragraphs 7, 8 and 9 of the complaint, being the allegations respecting the rent for the months of January, February and March, 1904. It then sets forth, as a separate defense, that the rent for November and December' became due and was unpaid, that the plaintiff harassed and annoyed the defendant, by threats and intimidation, and that when, in March, 1904, the defendant decided to leave said rooms, the plaintiff prevented it from removing its effects therefrom. For a third defense, and by way of counterclaim, the defendant reaffirms the allegations of its second defense, and demands damages therefor. The plaintiff demurred to the whole answer as insufficient in law upon the face thereof, and separately demurred to the counterclaim as not stating facts sufficient, to constitute a cause of action. The demurrer was overruled. The whole theory of the defense and .counterclaim is based upon the erroneous apprehension that the covenant of quiet enjoyment in a lease is broken simply because the landlord in some way annoys the tenant in the possession and enjoyment of the demised premises. Such is not the law. To constitute a breach of the covenant there must be an actual or constructive eviction, and there cannot be deemed to have been a constructive eviction without a surrender of the premises. And to constitute a defense to an action for rent the eviction must take place before the rent becomes due. Gugel v. Isaacs, 21 App. Div. 504. In the present case the defendant did not attempt to leave before March fifteenth, and the rent for March, by the terms of the lease, became due on the .first of the month. So, even if the defendant should claim that the acts of the landlord amounted to a constructive eviction and that they were about to surrender possession in consequence thereof on March fifteenth, these facts, if sustained, would be no defense to an action for the March rent. The facts stated in the second defense do not, therefore, constitute a sufficient defense to the action for rent. Nor are they sufficient to sustain a counterclaim. The acts of the landlord, if established, are not a violation of the contract of leasing, but amount to a tort, if anything, and damages therefor may not be counterclaimed in an action upon a contract of lease. It is clear, therefore, that the facts alleged in the second defense are insufficient, and that the demurrer to the counterclaim should have been sustained. The demurrer for insufficiency being to the whole answer was properly overruled if there is an issue raised by any of the denials or allegations. The defendant relies upon its denials. These are three in number, but unless they are denials of material allegations of the complaint, or serve to put in issue some fact alleged in the complaint which the plaintiff must prove in order to recover, and which the defendant may disprove, they raise no issue and are unavailing. The denial on information and belief of' plaintiff’s incorporation raises no issue. The like denial that plaintiff is the lessee of the building in which defendant rented offices .likewise raises no issue, because the tenant cannot question his landlord’s title to the demised premises. The denial of the allegations respecting the nonpayment of the rent for January, February ■ and March also raises no issue, when taken in conjunction' with the circumstance that the lease is admitted by a lack of denial. That the rent became due and payable is a conclusion of law and not of fact and is not put in issue by the denial. Whether it was demanded or not is immaterial and the denial of a demand is not, therefore, the denial of a ■ material fact. The general denial of all the allegations/ including the allegation of nonpayment,, is not sufficient to permit proof of payment, which must be pleaded in order to be proved. It follows that none of the denials are sufficient, to relieve the answer of the charge of insufficiency.

Judgment reversed and demurrer sustained with costs in this court and the court below, with leave to the defendant to amend its answer within twenty days upon payment of costs.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and demurrer sustained, with costs, with, leave to- defendant -to amend within twenty days upon payment of costs.  