
    BENJAMIN FITCH, Appellant v. PAUL J. ARMOUR, Respondent.
    
      Action on a lease for aflat to recover damages, etc., in case of abandonment of premises before expiration of term.
    
    The plaintiff’s complaint stated the terms of the lease, whereby he leased to defendant the first flat or floor over the store known as No. 61, 5th Avenue, New York, for the term of six months and fifteen daj’s from October 15, 1888, at the yearly rent of $1,700, payable monthly, and that by said lease it tvas covenanted that in case of default in an;' of the covenants therein contained, the landlord might resume possession of and re-let the premises for the remainder of the term, at the best rent he could obtain, for and on account of the tenant, who should make good any deficiency. Defendant abandoned the premises about April 1, 1889, and has not paid rent, payable first of April, May, June, and July, 1889, amounting to $566.66.
    The answer set up several defences, and certain objections were taken on the appeal to the sufficiency of the answer to uphold certain defences on which defendant prevailed on the trial, and also in the omission to set up affirmative matter therein, of which on the trial defendant had the benefit. In the course of the testimony no objection was taken to the insufficiency of the answer, and when the ease went to the jury there was no objection and no allusion to that subject. Held, that said objections cannot be considered on the appeal, because they were not raised on the trial.
    
      field also, that the charge of the court, to the effect that the landlord was bound to keep in condition whatever pipes were used in common between the occupants of this flat and of those above, was a proper charge; as also the charge, that if the rent accruing from tenants occupying the premises after defendant left was not collected because of any neglect of the plaintiff, the defendant should be credited with it, because under the cited provision of the lease the plaintiff was acting on account of the defendant and was bound to use due diligence in renting the premises and collecting the rent; as also the charge, that the defendant should be credited witli the amount of rent that would have been payable under a letting which (he plaintiff might have made to a lady who had offered to take a lease of the premises for the remainder of the defendant’s term. The reason given by plaintiff for not making such alease and accepting the lady’s offer was without substance; it was the duty of the plaintiff to the defendant, under the terms of the lease in suit, to have accepted that offer.
    The plaintiff’s counsel asked the court to charge, that the plaintiff had the same right to discriminate, as to the character of the tenant that he would let into tiie premises in the place of defendant, that he had if it were not on the account of defendant. This request was not correct. If the plaintiff was acting for himself he could rightfully discriminate without any reason, but when he acted on account of defendant he could rightfully discriminate only for sufficient reason. The plaintiff also asked the court to charge, that if the plaintiff was of the opinion that to rent the premises to this lady, who was an actress, would lower the character or standard of the house, or-that it would be objected to by the other tenants, he was justified in declining to rent. Held that the first part of this request was inapplicable to the facts of the case as the plaintiff had not refused on that ground. As to the second part, a mere opinion, not supported by a reason for the opinion, would not be sufficient ground for rejection, as he was acting for defendant as well as for himself. This is especially true when no inquiry, which might be made easily of the tenants, was made of them.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
    
      Decided May 4, 1891.
    Appeal by plain tiff from judgment entered on a verdict of a jury for the defendant, and from an order denying plaintiff’s motion for a new trial made upon the judge’s minutes.
    
      Abram Kling, for appellant.
    
      
      C. Bainbridge Smith, for respondent.
   Per Curiam.

The action was by the plaintiff, as landlord, to recover from the defendant, as tenant, under the covenants of a written lease. It is not expedient to state in detail the defence .as it appeared by the answer. Certain objections are taken on the appeal to the sufficiency of the answer to uphold certain defences on which the defendant in fact prevailed on the trial, and in its omission to set up affirmative matter of which, on the trial, the defendant had the benefit.

In the course of the testimony no objection was taken on the ground of the insufficiency of the answer, and when the case went to the jury there was no objection, and no allusion was made to that subject.

The premises let were one floor in a house, the other floors of which were let to separate tenants. After the evidence was in, the plaintiff’s counsel said to the court, that he thought that the only question that could possibly go to the jury is, as to whether the landlord maintained or allowed to exist on the premises and outside of the premises occupied by the defendant, and over which the landlord has exclusive control, anything which would amount either to a nuisance or which would interfere with the beneficial enjoyment by the tenant of the premises. This was not an admission by plaintiff’s counsel that such question should be put to the jury, because it was made on a motion for a direction for a verdict in plaintiff’s favor. But it was an admission that the case embraced such an issue, and as there was proper evidence on the subject the defendant was entitled to go to the jury upon it.

The court made a proper charge on the subject,- the plaintiff excepting only to a part of the charge, which was, that the landlord was bound to keep in condition whatever pipes were used in common between the tenants of this flat and the occupants of- the flats above ; in other words, such as were not solely within the control and in the sole use of the occupant of this flat, such pipes the landlord was in duty bound to keep in repair. This charge is supported by Tallman v. Murphy, 120 N. Y. 352.

As the jury found for the defendant, there would be no need of going farther if there had not been other issues left to them which may have been determined by them in favor of defendant, irrespective of the question of eviction. The lease provided that in case of any default in any of the covenants, the landlord might resume possession of the premises and re-let the same for the remainder of the term, at the best rent he could obtain, for the account of the tenant, who' shall make good any deficiency. After the defendant had left the premises, the plaintiff leased a part of them to Lyman & Youngs for the sum of $300. They had not paid this rent, and the judge charged that if that rent was not collected by any neglect of the plaintiff, the defendant was to be credited with it. The charge was correct, as under the cited provision the plaintiff was acting on account of the defendant and was bound to use due diligence in renting and collecting rents.

The court also charged, that the defendant should be credited with the amount of rent that would have been payable under a letting which the plaintiff might have made to a lady who offered to take a lease for the remainder of the term. The only reason given by the plaintiff on the trial for not accepting her as tenant, was that she was an actress, and although he himself had no objection to her on that score, he believed that the occupancy might disturb other tenants in the building. He could not foresee in what way, but his impression was that her hours would be naturally late, and he feared, as his tenants were domestic characters, it might disturb them.

This reason was without substance, for the plaintiff had no cause to believe the hours would be later than those of other ladies in the ordinary evening pleasures of the city, and were they never so late, the coming in would not be attended with noise or anything else that might disturb the other occupants upstairs. As, upon the plaintiff’s testimony, this was the only reason, she vras to be deemed in all other respects a fit and responsible tenant, whose offer it was the duty of the plaintiff to the defendant to accept.

On this subject the plaintiff’s counsel asked the court to charge, that the plaintiff had the same right to discriminate as to the character of the tenant that he would let into the premises in place of the defendant, that he had if it were not on defendant’s account. The request was not correct, for, if the plaintiff were acting for himself, he could rightfully discriminate without sufficient reason. If he acted on account of defendant, he could rightfully discriminate only for sufficient reason.

The plaintiff also asked the court to charge, that if plaintiff was of opinion that to rent these premises to an actress would lower their character or standard, or would be objected to by the other tenants, he was justified in declining to rent. ■

The first part of the request was inapplicable to the facts of the case, as the plaintiff had not refused on that ground. As to the second part, a mere opinion, not supported by a reason for the opinion, would not be sufficient ground for rejection, as he was acting for defendant as well as for himself. This is especially true where no inquiry, which might be made easily of the tenants, was made of them.

The judgment and order should be affirmed, with costs.  