
    Banyer Ludlow, Appellant, v. Patrick McCarthy, Respondent.
    
      Action for rent — counterclaim for an eviction before, and a conversion subsequent to, the expiration of the lease — sustaincible as to the forme)' but not as to the latter.
    
    In an action brought to recover the rent of certain premises under a lease which expired on the 1st day of April, 1894, except of the house in which the defendant lived, the lease of which expired on the 5th day of April, 1894, a counterclaim was interposed that the plaintiff had evicted the defendant from a substantial portion of the premises resulting in the destruction of certain crops, and had wrongfully and unlawfully restrained the defendant from removing from the premises certain articles of personal property which the plaintiff converted to his own use. The eviction took place during the term of the lease, but the conversion of the property did not occur until April thirteenth.
    
      
      Held, that the counterclaim should be sustained to the extent of the damages awarded for the eviction and the consequent destruction of crops, as these damages arose out of the breach of the covenant for quiet enjoyment;
    That the conversion of the personal property, which took place at a time subsequent to the expiration of the lease, was a separate and independent act, disconnected from the subject of the action, and could not be said to have arisen out of the contract or transaction set forth in the complaint.
    Appeal by the plaintiff, Banyer Ludlow, from a judgment of the County Court of the county of Westchester in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 25th day of June, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Augustus S. Hutchins, for the appellant.
    
      William G. Mulligan, for the respondent.
   Hatch, J. :

The process of examination and argument has reduced the question presented by this appeal to one of pleading. The action is brought to recover a balance due for rent of certain demised premises, situate in the comity of Westchester. Whatever contest was raised by the pleadings, over the identity and extent of the demised premises, and whether the lease was to be treated as verbal or written, was settled by the evidence given and the course of the trial. The answer contained a counterclaim, wherein the claimed agreement of letting was set forth, followed by an allegation of facts showing an eviction by affirmative acts and a re-entry upon the demised premises by the plaintiff. The fifth paragraph of the counterclaim alleged that the plaintiff entered upon the demised premises during the term and erected thereon a certain fence and did lock and bolt the gates on the premises and threaten the defendant with personal violence in case he should enter thereon, and did wrongfully and unlawfully restrain defendant from the removal of certain property from the said premises, consisting of six tons of hay, one mowing machine, fifteen loads of manure, one plough and three hotbed frames, and did convert the same to his own use. That in consequence defendant had suffered great loss and injury, to Ms damage of $1,000, for which sum lie demanded judgment. The evidence given upon the trial tended to establish that defendant had suffered an eviction from a substantial part of the demised premises, in consequence of which he had sustained damages to the extent of $300, consisting in the destruction of certain crops then upon the land and in the value of the use of the land of which he had been deprived. We have little difficulty in sustaining the counterclaim to this extent, and of the recovery had thereunder, as the damages arose out of the breach of the contract sued upon, and are clearly recoverable in an action to enforce payment of the rent. (Edgerton v. Page, 20 N. Y. 281; Mayor v. Mabie, 13 id. 151; Cook v. Soule, 56 id. 422.)

The alleged conversion of the personal property presents a different question. Had the conversion of the property and the eviction from the premises been concurrent acts, the counterclaim might find support within section 501 of the Code of Civil Procedure, as being connected with the subject of the action. (Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552.) But the lease of the premises, except of the house where defendant lived, expired on the 1st of April, 1894, while the lease of the house expired on April fifth. And it appeared from defendant’s testimony that 'the conversion of the property did not take place at the time of the eviction, but after the first of April, and as late as the thirteenth of that month. It cannot, therefore, be said that it arose out of a violation of the covenant for quiet enjoyment, and consequently it did not arise out of the contract or transaction set forth in the complaint. Nor was it, in a legal sense, connected with the transaction. It was a separate and independent act, disconnected from the subject-matter constituting the relation between the parties, except as their differences made it possible to arise. (Rothschild v. Whitman, 132 N. Y. 472.) The case, in principle, falls within Boreel v. Lawton (90 N. Y. 293); Edgerton v. Page (20 id. 281); Finkelmeier v. Bates (16 J. & S. 433).

It is clear, therefore, that no recovery for this damage w*as permissible in this action. The allowance of it would lead to a reversal of the judgment appealed from were it not for the fact that the record discloses exactly the extent of damage which plaintiff sustained by reason of it. When the proof of damage in this respect was made the learned judge below stated the items and their value; and again, in tlie charge, he stated the items and the exact amount. The verdict of the jury shows that they allowed this sum, and more presumably for damages sustained by the eviction. By deducting this item, which amounts to $128, plaintiff is relieved from the consequences of the error complained of.

The judgment and order appealed from will, therefore, be reversed, unless defendant consents to reduce the same by $128, together with a proportionate amount of the extra allowance. And if consent be given to so reduce, the judgment and order is affirmed, without costs to either party in this court.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless the defendant stipulates within twenty days to deduct from the verdict $128, with proportional amount of the extra allowance. If such stipulation is filed the judgment so modified is affirmed, without costs.  