15 Daly 198 | New York Court of Common Pleas | 1889
This is a reargument of an appeal from a judgment of the city court in favor of the plaintiff. A verdict was directed for the amount claimed, being the rent of a certain building for March and April, 1886, on the ground that a previous judgment recovered by plaintiff against defendant for tibe rent of the same premises for February, 1886, operated as a bar to all
It requires but slight reflection to see what a great practical injustice would result if the position taken by the court below were sustained. The court of appeals have held that the tenant cannot raise the defense of eviction till he vacates. Therefore defendant could not have made such defense in the suit for the February rent. Now the city court say that the tenant shall not plead eviction in the present suit for the March and April rent, because some of the facts on which the constructive eviction is based existed when the former suit was brought. Thus, through what might almost be called technical legerdemain, defendant would be precluded from ever raising or getting the benefits of a most meritorious defense, and be obliged to pay the rent for the full term, though the landlord had violated all the covenants of the lease. What would justify a tenant in vacating his premises as for an eviction depends so much on the terms of the lease, the nature of the covenants, the circumstances under which it was made, the condition of the premises at the time they were hired, who had control of the machinery, the circumstances of the omissions of duty, the nature of the negligence, etc., none of which were fully presented on the trial of this action, because of the erroneous theory on which it was tried, that we deem it premature to discuss that question at this time. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.