
    George W. Staples, plaintiff, vs. Catharine Anderson, defendant.
    1. It is a subject of defense and recoupment, in an action for rent, that premises demised for the purpose of keeping a respectable boarding house therein had beén previously occupied, to the knowledge of the lessor, without disclosing it, as a house-Of ill-fatn'e, and continued, after such demise, in consequence thereof, tobe subject to nightly visits at all hours, from disreputable persons of both sexes, to the .annoyance and disturbance of the tenant, and bringing, reproach and disgrace upon herself and her family, thus defeating the purposes and uses for which she rént'ed tbe bouse, and forcing her to abandon her business therein.
    2. Where, in such an action, the defendant set up as a defense, the bad character of the house, arising from its former mode of occupation, which obliged her to abandon it; and the evidence tended to show that the plaintiff, although knowing that his house had a bad repute, did not disclose the fact to the defendant, but represented that the premises were “ a go'od place” to let out furnished rooms to gentlemenHeM, that the' question of fact as to the character of the house, at the time of the letting, being known to the plaintiff, and his false representations or fraudulent concealment thereof from the defendant, should have been submitted to the jury, instead of directing them to' find a verdict for the plaintiff.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard April 11, 1865;
    decided June 24, 1865.
    This action was brought to recover rent of premises No. 10, West 13th street,, from the first of November, 1863, to the first of February, 1864.
    The defendant entered into possession thereof about the 15th of May, 1863, and abandoned them about the 21st of September, 1863. The amount of the claim and interest was conceded to be $242.32. The' defendant set up in her answer,
    
      First. That the house mentioned in-the complaint is located in a respectable neighborhood, and in a respectable part of the city of New York, and was vacant when hired by the defendant.
    
      Second. That the defendant rented said house for the use of herself and family, intending to let out the portions of said house not required for her own use in furnished rooms, and for no other uses, and she informed the plaintiff herein, before the said hiring took place, of the uses and purposes for which she intended said house.
    
      Third. That said house was a house of ill-fame, and had been used as such, with the knowledge and consent of the plaintiff herein, for one year or more preceding the first day of May, 1863, and was frequentéd at late and unusual hours of the night by disreputable and disorderly persons of both sexes, for unlawful and immoral purposes, and was used by the persons so occupying and frequenting it as a common brothel, all of which was known to the plaintiff prior to said hiring by the defendant, but of all which the defendant was ignorant, and had no means of ascertaining until after said hiring and occupation of said premises.
    
      Fourth. That immediately after said occupation, and until about the time when the defendant removed from said house, which was about the middle of September, 1863, she was subjected to nightly visits from that class of persons formerly frequenting said house for said immoral and unlawful purposes as above mentioned, and the ill-fame of the house and its former inmates and frequenters attached itself to this defendant and her family, by reason of her and their occupation of said house ; and by reason of the premises her name was slandered and held in reproach and disgrace by her neighbors and the public ; and the purposes and uses for which she intended said house were entirely defeated thereby, and she was forced to abandon said house and her business, to her great damage, to wit, in the sum of five thousand dollars.
    Wherefore, the defendant prayed that the complaint herein might be dismissed, with costs, and that the lease mentioned in the complaint might be delivered up to be canceled, and that she might have judgment against the plaintiff for her damages as aforesaid, in the sum of five thousand dollars.
    The issues were tried before a justice of this court, and a jury. Upon the trial, the defendant was permitted to amend her answer, so as to make the facts proven available as a defense, as well as a counter-claim. The counsel for the defendant requested the court to charge the jury, that if the jury find that the plaintiff deceived the defendant by concealing from her the character of the house, and that the defendant did not affirm the contract of letting, then they must find for the defendant. The learned judge refused so to charge, and the defendant excepted. The court charged the jury to find a verdict for the plaintiff for the amount of his claim, to which the defendant’s counsel excepted. The exceptions were directed to be heard, in the first place, at a general term of this court, and a motion was now made thereon for a new trial.
    
      F. R. Sherman, for the plaintiff.
    
      E. J. Hamilton, for the defendant.
   By the Court, Moncrief, J.

The plaintiff, upon the argument of the exceptions of the defendant’s counsel, urged that the matters stated in the answer are not the proper subject of defense as counter-claim. The plaintiff did not demur to the allegations set up by the way of counter-claim, nor object to the amendment of the answer upon the trial, making the facts proved available as a defense.” We must assume that the motion for judgment upon the pleadings was correctly decided and properly denied, and that there was no error of law committed, as against the plaintiff; the verdict being in his favor, he is bound to sustain the rulings and direction of the judge, and the verdict rendered against the defendant.

The matter set up in the answer may be the subject of defense or counter-claim. .(Westlake v. DeGraw, 25 Wend. 669, 672.) It was held in Smith v. Marrable, (11 M. & W. 5,) where a tenant was sued for rent under the lease of a furnished house alleged to be so infested with bugs as to be unfit for the occupation of a respectable family, that it was proper to let the jury say whether, under all the circumstances of the case, the alleged grievance amounted to a nuisance, or was merely made a pretext for leaving the house.

The evidence in the present case tended to show that the plaintiff represented that the premises were “a good place” for the defendant to let out rooms furnished to gentlemen. The defendant had stated to him her object in wishing to hire the house, and that she had plenty of good'*friends who would help her, and that was the only means she had of doing any thing for herself, after her husband’s death. There was also some evidence tending to show that the plaintiff knew that his house was not fitted for the purpose for which he was advised the defendant desired to use it; that the suggestion that it was “a good place” to let out furnished rooms to gentlemen was untrue ; and that the house was in such repute as to be an improper residence for respectable people. In Cornfoot v. Fowke. (6 Mees. & W. 359,) it is said: “It.must also be admitted that if the plaintiff knew of the nuisance (a brothel next door) but purposely employed an agent, suspecting that a question would be asked from him, and at the same time believing and suspecting that it would, by reason of such ignorance be answered in the negative, the plaintiff would undoubtedly be guilty of a fraud and the contract would be avoided ; for then the representation of the agent, which he intended to be made, would be the same as his own; and his own representation, coupled with his knowledge of its falsehood, would doubtless be a fraud. But whether the facts in the case would warrant an inference that such a fraud was committed, it is unnecessary to inquire, as if they would, this question should have been “submitted to the jury.” The agent in that case had been asked if there was any objection to the house, and he answered there was not. The defendant in this action testified that she never would have taken the house if she had known its character; that no respectable gentlemen would come into the house ; that she did not know any thing of the character of the house, or of its former inmates, before she took it; the plaintiff knew that his house had some bad repute, and he did not disclose the fact in his conversation with the defendant prior to her taking possession. The question of fact as to the character of the house at the time of the letting being known to the plaintiff, and his false representation or fraudulent concealment thereof from the defendant, we think should have been submitted to the jury. The direction to find a verdict against the defendant was therefore erroneous, and the exception to such direction must be held to have been well taken. A new trial is ordered, with costs of the argument of the exceptions to the defendant to abide the event of the action.  