
    Eliza J. Graves, Respondent, against Alexander Cameron, Appellant.
    (Decided December 1st, 1879.)
    In an action for rent of premises situated in another State, the facts that the demised premises became untenantable and were for that reason abandoned by the lessee are not available as a defense merely because the statutes of this State relieve tenants, under such circumstances, from lia- ■ bility for rent. Such a defense'would have been of no avail at common law, which, until the contrary is shown, is presumed to prevail in every State of the Union. •
    Where defendant in such an action neglects to plead the existence of a statute of the State where the demised premises are situated, making such facts, a defense, he will not be permitted to amend his answer by interposing such statute as a defense at the trial. =
    Appeal from a determination of the general term of the marine court of the city of New York, affirming a judgment of that court entered upon a verdict.
    The action was brought to recover rent of premises situated in the State of New Jersey. The facts are stated in the opinion. At the trial the jury found for the plaintiff, and judgment for the plaintiff was entered on the verdict. From the judgment the defendant appealed1 to the general term of the marine court, which affirmed the judgment; and from the order of affirmance the defendant appealed to this court.
    
      George Becker, for appellant.
    A. Bell Malcomson, Jr., for respondent.
   Van Hoesen, J.

The defendant hired a house in Hew Jersey, which he abandoned before the expiration of the term,' and he attempts to justify his action under the act of the legislature of the State of Hew York, known as chapter 345 of the laws of 1860. He does not actually assert that the laws of the State of Hew York govern leases of property situated in Hew Jersey, but he insists as there was no proof as to what the law of Hew Jersey is, we must assume that the legislature of that State has followed the lead of the State of Hew York in so changing the common .law as to permit tenants to abandon tenements which have become untenantable. In McCulloch v. Norwood (58 N. Y. 567), the court of appeals said in reference to the proposition that the statute law of another State must be presumed to be the same as the statute law of Hew York. It is difficult to find any reason upon which such a rule can rest, and when the question is distinctly presented we regard it as still open to examination.” Until the court of appeals shall announce a contrary doctrine, we must be governed by the decision of this court in Waldron v. Ritchings, 3 Daly, 288, which is in accord with a long line of adjudications in the supreme court ( Wright v. Delafield, 23 Barb. 498; White v. Knapp, 47 Barb. 549; Pomeroy v. Ainsworth, 22 Barb. 129 ; Holmes v. Broughton, 10 Wend. 75; Stokes v. Macken, 62 Barb. 145).

• In the case of Waldron v. Ritchmgs, Chief Justice Daly said that the common law was presumed to prevail in every State of the Union until the contrary was shown. At common law, the abandonment of the premises by the tenant would have been no defense to an action against him for the stipulated rent. The justice at the trial term was unquestionably right in his ruling. There is nothing in the exception to the refusal of the justice to permit the defendant to amend his answer at the trial by setting up as a defense the existence of a New Jersey statute which authorizes a tenant to abandon demised premises on their becoming untenantable. As the justice said, it would be permitting the defendant to set up a new substantive defense. It is unnecessary to cite authorities to prove that proposition, or that an entirely new defense cannot .be interposed, by way of amendment, at the trial.

The judgment should be affirmed with costs.

Charles P. Daly, Oh. J., and J. E. Daly, J., concurred.

Judgment affirmed, with costs.  