
    John S. Forster, Respondent, v. David Eberle, Appellant.
    (New York Common Pleas—General Term,
    March, 1894.)
    Defendant leased certain premises from plaintiff to be used exclusively as a stable. A notice of the board of health was served upon him, requiring the removal of horses from the premises and that the stabling of horses thereat be discontinued, and stating that application for necessary extension of time or for suspension of the requirement must be made in three days. He thereupon vacated the premises without making any application for an extension or suspension as provided for in the notice. Held, that defendant was not thereby relieved from lia- ' bility for rent accruing subsequent to his abandonment of the premises.
    Appeal from a judgment of the justice of the Sixth District Court, rendered in favor of plaintiff for eighty-eight dollars and seventeen dollars costs.
    The action was for rent, and the defense was dispossession by order of the board of health.
    
      Uriah W. Tompkins, for appellant.
    
      O. F. Finneriy (Arthur J. Westermayr, of counsel), for respondent.
   Per Curiam.

The plaintiff leased to defendant for one year from May 1, 1891, the stable in the rear of 251 and 253 Hudson street in this city, “ to be occupied as a stable and not otherwise.” On August 20, 1891, defendant was served with a notice from the board of health requiring him, in alleged conformity with the provisions of the sanitary code, to alter, repair, cleanse and improve the premises,” as follows, viz.: That all horses be removed from the premises and the stabling of horses thereat be discontinued,” and notifying him, that any application for necessary extension of time, or for suspension of any part of the requirements, must be made to the department within three days from receipt of the notice. The defendant on August 27, 1891, discontinued the use of the premises, and resists the claim for rent accruing after that date. The plaintiff recovered the rent unpaid for the whole term. The defendant proved at the trial the provisions of the sanitary code (§ 53), “ that no cattle, swine or sheep, geese, goats or horses shall be yarded within or adjacent to the built-up portions of the city of Hew York without the permit of this department, or otherwise than according to its regulations.” The tenant made no application to the board of health for an extension of time or suspension of the requirements of the notice.

There was no eviction by the landlord and no final order of the board of health after the hearing of the application for suspension which the tenant was entitled to request under the notice. The tenant voluntarily abandoned the premises without contest. If he is, therefore, relieved from the payment of rent, any lessee, by collusively procuring such a notice to be issued and by immediately complying with it, might terminate his lease. And it does not appear that there was any violation of any provision of the sanitary code. The “ yarding ” of cattle, swine, sheep, geese, goats or horses, is a wholly different thing from the stabling of horses in a properly kept stable. If the lessee kept the horse in the> yard instead of in the stable, or failed to keep the stable clean, so as to authorize the interference of the board, that is his fault. But the whole case fails to disclose facts which gave the board of health jurisdiction under the section in question.

The judgment should be affirmed, with costs.

Present: Daly, Ch. J., Bischoff and Pryoh, JJ.

Judgment affirmed, with costs.  