
    JAMES CODDINGTON and ISAAC CODDINGTON, Plaintiffs and Respondents, v. JOHN B. DUNHAM and DAVID H. DUNHAM, Defendants and Appellants.
    I. Lakdlobd and Tenant.
    1. Eviction—Counter-claim—Croton water, a. Non-supply of Croton water caused by a leak in a pipe outside of the demised premises (which the landlord after notice and request neglects or refuses to remedy), whereby a water-closet and wash-basin on the demised premises became useless, and thereupon the tenant had abandoned, and still continues to abandon, the use thereof, held not to constitute cm eviction, or furnish ground for a counter-claim against the rent, there being no interference by the lessor with the supply, and no covenants in the lease on his part either, that he shall keep up a supply of water, or that he shall keep the premises in repair, or that the demised premises should remain in the same condition and state of repair as they were in at the time of the execution of the lease.
    1. So HELD where the defendants who set up the eviction and counter-claim were lessees of the second floor and its appurtenances in a certain building (the water-closet and wash-basin being part of the appurtenances, and the leak being in the pipes in other portions of the same building), and thereafter them lessor leased the whole building to the plaintiffs, subject to the lease to defendants, by which plaintiff assumed the obligations of defendants’ lease, and became entitled to the rent reserved thereby.
    3. Quiet enjoyment—covenant of. a. Such neglect and refusal as above stated does not constitute a breach of such covenant.
    3. Lessee, right of, under above circumstances, a. He has the right to enter the portion of building, outside of his own premises, where the leak occurred, and repair the pipes.
    H. “ Subject of action” as used in § 150 of the Code—Counter-claim.
    1. Definition.
    
    
      “ a. The words “ subject of the action,” as there used, are equivalent to “the facts constituting plaintiff’s cause of action.”
    Before Monell, Freedman, and Curtis, JJ.
    
      Decided April 5, 1873.
    Appeal from judgment on demurrer to answer.
    . The complaint was for one quarter’s rent of the second floor and its appurtenances, No. 17 Union Square, in the city of New York, from 1st August to the 1st November, 1872, amounting to $875. The premises were leased to defendants and Edgar A. Dunham, who died before the commencement of this action, from the 1st May, 1870, to the 1st May, 1873, by one Nathan Clark, and the whole building was by him subsequently leased to the plaintiffs, subject to the lease to these defendants and Edgar A. Dunham; the plaintiffs, hy the lease to them, assumed the obligations of said lease to defendants and Edgar A. Dunham, and became entitled to the rent thereby reserved.
    A copy of the lease was annexed to the complaint and made a part thereof.
    The answer expressly admitted’ the making of the lease of the second floor as alleged in the complaint; also the death of Edgar A. Dunham, and the lease of the building by Nathan Clark to the plaintiffs as averred in the complaint. It also set up in bar of the rent, an eviction from part of the demised premises by reason of plaintiff’s failure to keep up a supply of Croton water; and finally contained a counter-claim to the extent of three hundred dollars for damages alleged to have been sustained in consequence of plaintiff’s failure as aforesaid.
    The plaintiffs demurred to the answer upon the ground that it constituted neither a defence nor a counter-claim to the claim of the plaintiffs in this action.
    The court at Special Term sustained the demurrer.
    The appeal is from the judgment entered upon the order of the Special Term.
    
      Ten Broeck & Van Orden, for appellants,
    urged :
    That the plaintiffs, by the lease, were obliged to furnish a supply of water during the entire continuance of the lease, as an appurtenance to the second floor leased, and that, without the supply of water, the water-closet and wash-basin, and the apartment in which they were located, were rendered useless to the defendants.
    That the supply of water was a material inducement to the hiring of the second floor, No. 17 Union Square, in connection with the apartment containing the water-closet and wash-basin, was directly incident and necessary for the enjoyment of the second floor, and the defendants not only agreed to pay rent on account of the same, but the Croton water rent in' addition; and without the supply, the defendants, it is not reasonable to suppose, would have hired the premises.
    The obligation to supply the water was unconditional without provision against contingencies, and the plaintiffs cannot be excused by setting up the pretence that it was a matter of repairs to the pipes outside, which they had not agreed to make, and against which they had made no provision.
    That neither the pipes, nor the premises through which they ran, were under the control of the defendants to enable them to make the repairs to the pipes. That they would have been trespassers in attempting’ to make repairs or to meddle with the subject of the supply of water.
    That the plaintiffs being obliged to furnish a supply of water for the water-closet and wash-basin, this obligation necessarily involved the duty of seeing that the means of supply were in proper condition.
    The plaintiffs did not and could not deliver possession of the supply of water or the means of supply at the time of the making of the lease of the second floor, No. 17 Union Square. They delivered possession of the second floor and the apartment containing the water-closet and wash-basin and the water pipes in the same. The supply of water, including the means of conveyance outside, was a matter resting in executory contract of a continuing nature entirely within the control of the plaintiffs and not of the defendants, and with which contract the plaintiffs were bound to comply.
    If the plaintiffs intended to qualify the obligation to supply the water, they should have provided in the lease for the contingency of the means of supply being out of order, and have provided the defendants with the right and power to make any necessary repairs and to control the supply which was essential to protect the defendants in the enjoyment of a material portion of the demised premises.
    
      Ordinarily a lessee is possessed of the entire premises leased when the lease is made, and clothed with the right to make repairs during the term, for his own protection, in case the lesser has not agreed to make repairs ; but in this case the plaintiffs were not able to give the possession of all they leased, and consequently undertook as a matter of contract of an executory character to provide unconditionally what was within their control, and cannot be excused except by the act of God, the intervention of law, or the act of the lessee (see 44 Barbour, 54).
    Whether the plaintiffs shut off the water, or the act was done by other parties, is immaterial to the defendants.
    After notice at least the plaintiffs were bound to see that the supply was furnished and the means in order for that purpose. It was not in the power of the defendants to do more than give notice to the plaintiffs.
    If the wrong of shutting off the water was perpetrated by parties other than the plaintiffs, after notice, they adopted the wrong committed by the neglect and refusal to supply the water, and connived at its perpetration. Its correction was within their control or should be, and they are responsible for the wrong.
    An agreement in a lease to supply water or steam-power for the purposes of the lease, is a material element of the lease, and cannot be avoided by the pretence that the lessor has not agreed to repair the means in case the supply fails for that reason. It works an eviction (see 47 N. York, 680).
    The failure to supply the water necessary for the water-closet and wash-basin forced the defendants to abandon the same and the apartment in which they were located, as entirely useless to them, and this worked an eviction from a material and necessary portion of the demised premises, which occurred prior to the rent becoming due (see N. Y. p. 680).
    An eviction can as well be accomplished by an act of omission of duty or obligation, as by an act of commission. After notice a party is held responsible for the acts of others, which are subject to his control, on the ground of connivance at those acts (see 4 Comstock, 217; 1 Sandford S. C. R. p. 260).
    An eviction from a portion of the premises demised, suspends, the rent as to the whole premises demised until the part is restored (1 Kernan, p. 216; 18 N. Y. 529; 14 Howard P. R. 155; 3 Kernan, 151; 4 Comstock, 217; 1 Sandford, 260).
    An eviction by the lessor is a breach of the covenant of -quiet enjoyment (see 1 Kernan, p. 216).
    As to second branch of the. defence, by way of counter-claim. In case it shall be held there is no eviction, defendants can recover their damages by reason of the failure to supply the water after notice, in violation of the lease to the defendants. It arises directly out of the contract on which the rent is claimed, and under the broad provisions of the Code to prevent circuity of action, the damages can be recouped in abatement on the rent (38 N. Y. p. 83; 2 E. D. Smith, 130; 4 E. D. Smith, 339; 35 Barbour, 523; see Code, sec. 150; 35 N. Y, p. 369; 20 N. Y. p. 281).
    
      H. K. Goddington, of counsel for respondents,
    urged :
    I. The allegations in the answer clearly are not sufficient to constitute an eviction. The utmost they can be held to allege is a neglect on the part of the plaintiffs to repair. While perhaps if there were any agreement to repair this might be held to affect the beneficial enjoyment of the premises, it clearly cannot be held to be an eviction, which can only arise where some affirmative act is committed by the landlord, either an actual physical ouster, or else the 11 commission of acts so illegal and monstrous in their character as to amount to an actual physical ouster” (Taylor’s Landlord and Tenant, § 379, and cases cited note; Bouvier's Law Dict. p. 543, Eviction, and cases there cited; Ogilvie v. Hull, 5 Hill, 52; Edgerton v. Page, 20 N. Y. 281; Lounsbery v. Snyder, 31 N. Y. 516; Johnson v. Oppenheim, 43 How Pr. 433 (Superior Court, General Term, March, 1872), and cases there cited.
    II. And especially can there be no eviction here since the defendants occupied the premises demised for the whole period for which rent is demanded, and still occupy them. The answer it is true alleges that about one month prior to November 1st, the defendants “abandoned the possession and use of the water-closet and wash-basin,” alleged in the answer to be “ an appurtenance ” of the premises. But it is well settled that unless there be actual physical ouster from the whole or some part of the premises, no act of the landlord affecting the enjoyment of the premises or of any part, can be held an eviction or a bar to the rent unless the tenant abandon possession of the whole premises (Taylor's Landlord and Tenant, § 379-381, and cases cited note; Edgerton v. Page, 20 N. Y 281; Mortimer v. Brunner, 6 Bosw. 653; Johnson v. Oppenheim, 43 How. Pr. 433).
    III. And, again, the answer simply says the defendants “abandoned the possession and use of the water-closet ;” it does not allege that the plaintiffs were notified of the abandonment, that the defendants have in any way relinquished its exclusive possession, or that anything at all was done by the defendants except simply not using it.
    IV. ÍTeither is the second defence, the counter-claim of three hundred dollars damages, any more tenable.
    1. bi o trespass nor any wrongful act of the plaintiffs is alleged, but it is simply alleged that they neglected to repair, which they were not bound to do by any agreement in the lease or outside of it.
    V. The allegations in the answer, that the pipes passed through other portions of the premises leased by the .plaintiffs to other parties, etc., do not alter the well-settled rule that a lessor is not bound to repair except by express agreement.
    1. The fact of these pipes passing through other portions of the premises, gives the defendants the right to enter on said premises and repair the pipes themselves whenever necessary (Lampan v. Milks, 21 N. Y. 508, and cases cited; Promfret v. Ricroft, 1 Saunders, 322).
    It is not alleged that the defendants were refused or obstructed in any way in this right to enter and repair.
    VI. The answer also alleges that by the terms of the lease the defendants agreed to pay the Avater tax on the part of the premises demised to them; but it can hardly be argued that this imposed a liability on the plaintiffs to keep the pipes in repair, any more than the agreement of the defendants to pay the rent of the premises imposed a liability upon the plaintiffs for repairs generally.
    VII. The answer alleges also a covenant for quiet enjoyment. Mo breach of such covenant is however alleged, nor do any of the facts alléged amount to such a breach, this covenant relating only to the title, and not to the actual possession or undisturbed enjoyment (Howard v. Doolittle, 3 Duer, 464; Doupe v. Grenin, 1 Sweeny, 25; Edgerton v. Page, 20 N. Y. 281; Johnson v. Oppenheim, 43 How. Pr. 433).
    Vin. In any view of the case, therefore, even if the plaintiffs can in any manner, by any forced construction of the law or facts, be held to be responsible for this alleged damage, it clearly cannot be held to constitute a counter-claim in an action of covenant for rent, since it neither arises out of contract nor “ out of the contract or transaction set forth in the complaint as the foundation of plaintiffs’ claim nor “is it connected with the subject of the action,” since the alleged damages even if real do not arise from the breach of any covenant in the lease (section 150, Code Edgerton Page, 20 N. Y. 281; Drake v. Cockcroft, 4 E. D. Smith, 34).
    
      1. The cases cited lay down the rule, that unless the wrongful act or negligence of the landlord amounts to a breach of the contract of letting, they are not connected with the subject of the action, and cannot be recouped in an action of covenant for the rent.
    
      2. It must be remembered that this is not an action for use and occupation, but an action of covenant, and that the value of the premises is entirely immaterial.
    ■ 3. The case differs radically from those where the lessor deprives the lessee of some thing expressly leased him, as in letting a room, expressly contracting in the lease to supply steam-power; or "a mill, expressly contracting in the lease to supply water-power, etc.
    IX. The judgment at Special Term should therefore be affirmed, with costs.
   By the Court.—Freedmah, J.

The lease in question demised the second floor of the building at the northwest corner of Union square and Fifteenth street, in the city of New York, with the appurtenances, which, however, are not described. It contains a covenant for quiet enjoyment, which relates only to the lessors’ title, and means that the lessees shall not be evicted by a paramount title, but which does not secure undisturbed enjoyment where there is no eviction from the premises. It does not contain any warranty on the part of the lessors that the demised premises shall continue to remain in the same condition and state of repair that they were in at the time of the execution of the instrument. Nor does it contain an obligation on the part of the lessors to keep the premises in repair. On the part of the lessees, however, it contains a covenant that they will pay the regular annual rent or charge, which is, or may be, assessed or imposed according to law upon the said premises for the Croton water, on or before the first day of August in each year during the term, and that, if not so paid, the same shall be added to the quarter’s rent then dne. A copy of this lease is annexed to the complaint and forms part of the same ; and defendants’ answer expressly admits the execution of the lease as alleged in the complaint.

The defendants, however, further allege that among the appurtenances leased, as aforesaid, was a water-closet and wash-basin and a continuous supply of Croton water for the same; that the said water was supplied through pipes running through other portions of the building leased by plaintiffs to other parties, and that in consequence of the occurrence of a leak in the pipes outside of defendants’ premises, but in the same building, the water was shut off on the 8th day of July, 1872, of which plaintiffs were immediately notified; that after-wards plaintiffs were requested to cause a supply of water to be furnished, but that plaintiffs neglected and refused to repair the said pipes or to furnish a supply of water ; that defendants thereupon abandoned the said water-closet and wash-basin; that they have been evicted, and are still held evicted, from the same, and that by reason of such eviction the rent is barred.

The answer finally sets up that defendants have suffered damages and inconvenience ; and that, in case the facts pleaded as an eviction should not be deemed sufficient in law to constitute an eviction, the defendants, upon the said facts, claim to recover, as a counter-claim, the sum of $300 damages for the breach of the agreement to furnish a supply of water as an appurtenance.

Upon examination, we are satisfied that neither the defence pleaded nor the counter-claim can be upheld. The Croton water is furnished by the corporation of the city of Uew York to applicants on payment of an annual tax or charge; and where neither the flow of water, nor the pipes appertaining to the tenement through which it flows, are interfered with by the lessor, the question, whether a failure to insure a supply of water amounts to an eviction, must depend upon the necessity of the supply for the purposes of the tenement, and the lessor’s liability to keep it up ; and that liability can exist only where the lessor has obligated himself so to do. No such obligation exists in this case, nor can any be implied. The utmost the answer can be held to allege is a neglect on the part of the lessors to repair, and on this point the rule is well settled that a lessor is not bound to repair except by express agreement. Defendants had a right to enter the portion of the building outside of' their own premises, where the leak occurred, and to repair the pipes (Lampman v. Milks, 21 JY. Y. 508, and cases there cited); and it is not alleged that they were refused such right, or in any way obstructed in the exercise thereof. Nor is it alleged that in consequence of the leak the water was shut off by the lessors. For all that appears it may have been done by some other tenant without the knowledge and consent of the lessors. The answer, therefore, shows neither an interference by the lessors nor an obligation on their part to insure a continuous and uninterrupted supply of water, and consequently does not show facts sufficient to constitute an eviction. In Johnson v. Oppenheim, 34 N. Y. Superior Court Reports, p. 416, the adjudications of this State bearing upon the subject of interference by landlords with tenants were arranged into several classes, and the remedy peculiar to each class pointed out; but this case cannot be brought within any of the classes there referred to.

There being no obligation in the lease to keep up a supply of Croton water, it further follows that the counter-claim, which is based upon such assumed obligation, must also fail. For even if otherwise good, it could be sustained as a counter-claim in this action, only upon proof that it arose out of the contract or transaction set forth in the complaint, or that it is connected with the subject of the action (Code, § 150). The words “ subject of the action,” as there used, are equivalent to “the facts constituting plaintiff’s cánse of action” (Chamboret v. Cagney, 2 Sweeny, 378; S. C. 41 How. 125; 10 Abb. N. S. 31).

The judgment must be affirmed with costs, with leave to defendants to file and serve an amended answer in twenty days, upon payment of all costs since commencement of action.

Monell and Curtis, JJ., concurred.  