4 Abb. Ct. App. 461 | NY | 1863
By the terms of this law the defendants were bound to-pay the quarter’s rent due to the plaintiff on the first
Littledale, J., said : “ Here an expulsion, which is a putting out did not take place, a party who comes to claim, but has never entered can not be expelled.” To constitute an eviction or expulsion there must be some affirmative act on the part of the party sought to be charged with the consequences flowing therefrom. An eviction consists in taking from a tenant some part of the demised premises of which he was in possession, not in refusing to put him in possession of something which, by the agreement of the parties he ought to have enjoyed. The omission of a landlord, therefore, to perform such covenant does not amount to an eviction, hnd is no bar to the lessor’s claim for rent. The lessee’s remedy is by an action to recover damages for a breach of the covenant. Etheridge v. Osborne, 12 Wend. 529. In this case there was a failure on the part of a lessor to perform certain covenants contained in the lease which, if they had been performed, would have rendered the demised premises more valuable, and it was held that such failure furnished no bar to the lessor’s claim for rent. Chief-Justice Savage, in the opinion says, “an
. The judgment appealed from should be affirmed, with costs.
Judgment affirmed, with costs.