
    Sarah A. Barnum et al., Resp’ts, v. John Fitzpatrick, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Landlord and tenant—Eviction.
    Defendant rented premises of plaintiffs by a lease which contained no covenant by the landlords to repair, and provided that defendant would execute and fulfil all ordinances of the corporation and all orders of the police board and board of health. He refused to comply with certain orders, including one to take down and rebuild two walls of a stable which had become unsafe, and pursuant to said orders plaintiffs made repairs and tore down the stable. Defendant refused to surrender his lease, although offered a release from liability if he would do so, and collected rent from his sub-tenants. Reid, that the acts of the landlords did not amount to an eviction excusing him from payment of ívnt.
    
      2. Summary proceedings— Non-payment of rent.
    It is no defense to summary proceedings for non payment of rent that the full amount of the stipulated rent is not payable; the landlord is entitled to a final order if any rent is due.
    8. Same—Counterclaim.
    In summary proceedings to recover possession of demised premises the tenant cannot plead a counterclaim in answer to the proceeding.
    Appeal taken by the tenant from a final order of the district court in the city of New York for the fifth judicial district, awarding to the landlords the delivery of. the possession of the premises known as 820 Stanton Street, for the non-payment of rent.
    
      Frank Moss, for app’lt; Hatch & Warren, for resp’ts.
   Bookstaver, J.

When this case was before us upon a former appeal, we fully and at some length examined both the facts and the law, and it will be unnecessary to do so again except in so far as the new trial has presented a different state of facts. Upon the second trial all of the correspondence between the attorneys for •the respective parties, and the orders of the health and fire departments, were admitted in evidence, and the return shows that nearly all, if not all, of what was done by the landlords was in consequence of these orders and the tenant’s refusal to comply with them.

First, as to the rear building on G-oerck street, called a barn or stable in the testimony and briefs of counsel, the acts of the landlords in regard to which are most bitterly complained of by the tenant. Ou or about the 24th February, 1891, the health depart-_ ment served an order requiring the drain from the hopper closet and hydrant to be disconnected from a cesspool in the yard and connected with the house drain by continuous pipes, and that the stable floor be graded to a properly trapped sewer connected drain. This was not primarily the landlords’ duty, as there was no covenant in the lease on the part of the landlords to make any repairs whatever to the premises during the term of the lease, and the tenant expressly covenanted to execute and fulfil all the ordinances of the city corporation applicable to the premises and all orders and requirements imposed by the board of health and the police department for the correction, prevention and abatement of nuisances or other grievances in, upon or connected with the premises during the term, at his own expense; and had further covenanted not to call upon the landlords for any disbursements or outlay during said term. And notwithstanding this order was called to his attention, the tenant neglected and refused to comply with it.

Thereafter, and on the 3d March, 1891, an order of the fire department was served upon the parties to this proceeding, requiring them to make the stable safe by taking down the rear wall and rebuilding the same, and also requiring them to take down the cracked and bulged portions of the southerly wall. It does not appear from the return how these two walls became so dilapidated as to require such extensive repairs, but as the landlords had not covenanted with the tenant to make any, they of course were not bound to do so, as far as the tenant was concerned; if he desired the continued use of this building after the orders of the fire department, it was his duty to have made the repairs himself. But this he also refused to do. At the time the last notice was served, the parties hereto were notified that unless they immediately certified the superintendent of buildings their assent or refusal to-make the building safe, a survey would be ordered to be held thereon, and all costs and expenses incurred therein would become a lien on the building. And the tenant having refused to do anything towards compliance with either of these orders, it became necessary for the landlords to do it themselves, for if they neglected, the fire department had the right under the law to enter the premises and do what was required and charge the amount against the property, which would doubtless have been at an -increased expense to whoever was bound to pay for it. But tearing down the rear and side wall rendered the stable unfit for use for any purpose, and would naturally cause the remaining- walls to be unfit and dangerous; and therefore the landlords would either have to rebuild or tear all the walls down; and as they were under no covenant to repair they were not bound to rebuild.

When this action was before us on a former appeal we showed that the tearing down of a building under such circumstances did not amount to an eviction or even to an unlawful trespass. 42 St. Rep., 179; Brown v. Quilter, Amb., 621. And the supreme court, second department, arrived at the same conclusion in White v. Thurber, 29 St. Rep., 204.

We do not think that the acts of the landlords in tearing down-this stable were, under the circumstances, either willful or malicious, as claimed by the appellant. There is not the least intimation in the return that these orders were procured at the instigation of the landlords, or for tire purpose of having the buildings-torn down or removed. All that they did was rendered necessary by lawful authority, unless, indeed, they had chosen to rebuild, which they were not bound to do, as before shown.

After what was said on the former appeal, it is not necessary now to review at length the various orders of the health and fire-departments relating to the front building on Stanton street. It. is sufficient to say that the orders of these departments, admitted in evidence upon the last trial, fully justified the inferences of the court on that appeal. These orders required extensive repairs to that building, so extensive, in fact, as to have seriously affected the beneficial use of the premises, and would have justified the tenant in removing from them as on an eviction, and had he done so the landlords could not have complained. ■ Indeed, they foresaw that the repairs were of such a nature as would seriously interfere with the use of the premises, and offered to relieve the-tenant from all liability if he would surrender his lease. This, however, he persistently declined to do, but remained in possession at the time these proceedings were commenced, as did also-his sub-tenants, from whom he collected rent for the month of July, although he refused to pay the landlords his rent for that month, on account of which this proceeding was brought. And as shown on the former appeal, it was not a sufficient answer to the proceeding that the full amount of the stipulated rent was not payable, and that the landlords were entitled to a final order if any rent was due; also, that in summary proceedings by a landlord against a tenant to recover possession of demised premises, the latter could not plead a counterclaim in answer to the proceeding.

There is nothing in the return which would lead us to believe that at the time the landlords instituted this proceeding they were not acting in good faith, either in commencing the proceeding or in doing the work which they were required by higher authority to do, or that they, at that time, intended to delay the work so as to seriously interfere with the tenant’s use of the premises. Much of the delay, it seems to us, was occasioned by the tenant himself refusing to assist the landlords by the removal of his property on the premises to be repaired. The question must be determined as of the time when the proceeding was instituted, and not by subsequent acts.

We therefore think the final order should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.  