90 N.Y. 293 | NY | 1882
The substance of the defense set up in the answer, is that the lessor permitted the rooms above those leased to the defendant to be used and occupied by persons who carried on a noisy business, using therein printing presses, and also weights and substances which were thrown down upon the floor immediately over the defendant's rooms, causing great noise and disturbance, thereby interfering with the defendant's use, occupation and possession of *296 his rooms, and preventing him from carrying on his professional business therein, and preventing clients from consulting him, etc. It is further alleged that on divers occasions during the period during which the rent sought to be recovered, accrued, the defendant was compelled to leave his rooms, etc., by reason of the said noise and disturbance; that the throwing down of weights in the room above, cracked and broke the ceiling of defendant's room, causing dust and lime to fall upon his books, furniture, etc., and that water leaked through the broken ceiling and ran into defendant's rooms, injuring his carpet; that the noise, disturbance, etc., was permitted by the plaintiff, and was made with her knowledge, consent and license, and that although requested, she did not prevent it, or cause it to be stopped, and that the defendant sustained damage from the matters stated, in the sum of $2,000.
We think the demurrer to the answer was properly sustained. The action is upon a lease, under seal, for the term of three years, from May 1, 1875, to recover rent accruing for the last half year of the term. The complaint alleges an occupation by the defendant during the whole term, and this allegation is not denied. The averment in the answer that on divers occasions the defendant was obliged to leave his rooms by reason of the noise and disturbance, is not inconsistent with the continued legal occupation and possession of the demised premises by the lessee. The defendant insists that the facts stated in the answer, constitute a cause of action against the plaintiff. But conceding this, the question remains, whether it is available as a counter-claim in an action on the lease, for rent due, under the definition of a counter-claim in section 501 of the Code. It is contended that the facts stated, constitute a breach of the covenant of quiet enjoyment on the part of the lessor, implied in the lease. That such a covenant is implied in a lease, under seal, for a term not exceeding three years, as well since as before the Revised Statutes, was decided in The Mayor, etc., v.Mabie (
The judgment should be affirmed.
All concur, except RAPALLO and TRACY, JJ., absent.
Judgment affirmed. *298