1 E.D. Smith 169 | New York Court of Common Pleas | 1851
exceptions taken by the defendant in this cause are to the rejection of the evidence offered by him upon the trial, to establish a recoupment and set off. The first ground upon which the evidence was offered, as stated by the defendant’s counsel at the trial, was, “ that in the absence of proof of any agreement to pay a specific rent, the defendant was at liberty to show how much the premises were reasonably worth in their deteriorated state.”
On the argument of the appeal, the defendant’s counsel have urged the same propositions, together with some others which do not appear to have been taken on the trial at all.
In regard to this branch of the case, it is sufficient to say that the assumption upon which it rests is groundless. The complaint avers a distinct agreement to hire the house in question for eighteen months, and to pay therefor at the rate of $1,000 per annum. The agreement in this respect is not denied. The defendant says the agreement is incorrectly stated, denying that he agreed to keep the house in good and tenantable order, &c., hut he does not deny the hiring, the term, nor the specific rent. They were therefore admitted, and no proof of any .facts tending merely to show the value of the premises was admissible. The second ground urged was, that “the defendant was at liberty to show a disturbance in the possession and the diminution of value occasioned thereby.”
Nor is it less clear that damages for such a trespass, as such, and not in itself constituting a breach of the contract declared upon, cannot be proved for the purpose of recoupment.
The only pretence for regarding- this trespass as a breach of contract, is found in the allegation of defendant in his answer, that in the agreement of hiring and letting, the plaintiff promised, &c., to let the defendant have the sole and uninterrupted use and occupation, &c. Regarding this allegation in the light most favorable to the defendant, as a covenant or agreement for quiet enjoyment, it will not warrant the evidence offered. A mere trespass is not a breach of such a covenant ; nothing less than an eviction would sustain an action on such a covenant. It is not claimed that this was an eviction. (See Ogilvie v. Hull, 5 Hill, 52.)
But the appellant urges a reversal upon another ground, not taken at the trial, to wit, that the plaintiff represented the water pipes, &c., &c., to have been properly made and of proper materials, when, in fact, they were made in an unworkmanlike manner and of inferior and insufficient materials, and that the defendant should, therefore, “have been allowed to off set and claim, by way of recoupment, repayment of moneys paid by him for the purpose of keeping them in repair.”
The complaint avers, and the answer admits, that the defendant agreed to keep those water pipes in repair. The answer does not state at what time the representation was made, whether before or after the hiring of the premises, nor that the representation was made as an inducement to the hiring, nor relied upon by the defendant, nor that the misrepresentation was willful, nor that the plaintiff did not make it innocently.
The answer does not specifically state that any damages were sustained by the defendant from the misrepresentation, nor that any repairs were in fact made by him, nor that he paid
In regard to the pipes, he says, “ he is entitled to repayment of the moneys paid by him for the purpose of keeping them in repair.” He does not aver that they were at any time repaired by him, nor that he paid any money therefor.
I think the defendant has failed to lay the foundation by his answer for the evidence which he offered, and that the judgment should be affirmed.
Judgment affirmed.