#### Abraham B. Cox and Julia T. E. Cannon, Respondents, *v.*Henry C. Cryder and Theodore A. Havemeyer, Appellants.

First Department,

July 9, 1915.

Landlord and tenant — action for rent—defense—breach of covenant by landlord — remedy of tenant for breach of covenant not amounting to an eviction — appeal—failure of trial court to deduct nominal damages upon a counterclaim.

A. breach of covenant on the part of a landlord, existing at the time a tenant takes possession of the premises, and fully known before the term of the lease commences, does not constitute a defense to an action for rent.

Where tenants, upon discovering alleged defects, and ascertaining that the landlord will not remedy the same, fail to assert any right to remove from the premises, but on the contrary remain in possession not only during a period prior to the commencement of the term and for which no rent was reserved, but also *as tenants*for one entire month of the term, their remedy for any breach of covenant on the part of the landlord not amounting to an eviction, is to counterclaim their damages or bring an independent action therefor.

*625Where tenants under such circumstances vacate the premises after one month, the landlord is entitled to recover rent from said date until the premises are relet.

The appellate court on an appeal from a judgment in an action for rent is neither required to grant a new trial nor to modify a recovery for a failure to deduct nominal damages upon a counterclaim for breach of covenant.

Appeal by the defendants, Henry C. Cryder and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New ■ York on the 9th day of June, 1913, upon the verdict of a jury, . and also from an order entered in said clerk’s office- on the 20th day of June, 1913, denying the defendants’ motion for a new trial made upon the minutes.

*John M. Bowers [Gerald S. O’Loughlin*with him on the brief], for the appellant Havemeyer.

*Reid L. Carr,*for the appellant Cryder.

*George V. Mullan,*for the respondents.

Laughlin, J.:

The plaintiffs have recovered for rent reserved under a lease, in writing, of premises known as Nos. 112-114 East Sixty-third street, borough of Manhattan, New York. The lease was executed by the parties hereto on the 21st day of July, 1910, but it expressly provided that the term should commence on the first day of January thereafter, and end on the 1st day of May, 1921. At the time the lease, was made there was an old building on the premises which had been partly destroyed by fire in March, 1,910, and it was intended to reconstruct it, and it was to be used by the defendants for the purposes of a garage.

It was provided in the lease that the tenant leased the premises ‘‘ with the building to be erected thereon from plans and specifications ” thereto annexed, and that the tenants were to have possession of the first two floors on October 1, 1910, and the remainder of the building on November 1, 1910, rent free until January 1, 1911. The rent reserved was $8,500 per annum, payable in monthly installments, and at the time of executing the lease, or shortly thereafter, the tenants paid *626the rent for the month of January, 1911. The plans and specifications annexed to the lease had been prepared pursuant to negotiations between the parties. The defendants took the lease for the benefit of a corporation known as Cryder & Company, in which they owned nearly all the capital stock. According to the testimony the defendants took possession of the first floor early in November, 1910, and of the second floor within a week thereafter, and of the rest of the building within a few days thereafter; but it was admitted by the pleadings that they went into possession during the month of October, 1910.

After the defendants were given possession of the entire premises, and prior to the 1st day of January, 1911, when the term for which rent was to be paid commenced, they complained that Jhe changes and alterations and construction in certain respects had not been in accordance with the plans and specifications, and demanded that heavier floors be constructed. The plaintiffs insisted that most of the complaints were groundless and that the floors had been constructed in accordance with the plans and specifications, but offered to remedy all defects complained of with the exception of constructing new floors, and offered to do that at the expense of the defendants. The defendants refused to bear the expense of constructing new floors and the negotiations between the parties with respect thereto were broken off before the 1st day of January, 1911. On the 4th day of January, 1911, the attorneys for the defendants wrote plaintiffs’ brokers stating that defendants intended to vacate the premises on the 1st day of February, 1911, for reasons pointed out in previous letters, and that the plaintiffs were at liberty to relet the premises, and in the postscript to this letter it was said that it was written without prejudice to any claim of the' lessees for damages. Defendants did vacate the premises the latter part of January, 1911, and after a lapse of seven months the plaintiffs relet the premises and then brought this action to recover the rent reserved by the lease for the seven months. The defendants pleaded a counterclaim for damages owing to the alleged failure of the plaintiffs to make the alterations and changes in the building as agreed.

There are many errors in the charge and the' only theory *627upon which the judgment can be sustained is that the plaintiffs were entitled to recover for the rent and that defendants failed to present any competent evidence in support of their counterclaim which would have warranted the jury in awarding them more than nominal damages. The court at the outset charged that if the plaintiffs were entitled to recover the rent then the jury need not consider the counterclaim as there could be a recovery on the counterclaim only in the event that the plaintiffs were not entitled to recover rent; and then instructed the jury that the defendants having entered, were not at liberty to abandon the building for the failure of the plaintiffs to complete the building according to the plans and specifications, and were justified in abandoning it only if the plaintiffs did or suffered any acts after defendants took possession, which amounted to a constructive eviction, but did not define what would constitute a constructive eviction. Under these instructions it was the duty of the jury to find for the plaintiffs, notwithstanding the fact that they were not so expressly directed, for there was no evidence that the landlords did or suffered any act or acts after defendants took possession which constituted a constructive eviction. The court, without expressly instructing the jury to the effect that if the building was so constructed that it could not be safely occupied by defendants that would constitute a constructive eviction, gave the jury to understand that if the premises were in a dangerous condition the tenants were justified in abandoning them. The appellants took no exception to the charge' on this point, and did not request the court to further instruct the jury thereon; but now claim that they were justified in abandoning the premises by virtue of the provisions of section 227 of the Eeal Property Law (Consol. Laws, chap. 50; Laws bf 1909, chap. 52), which provides that where a building, which is leased, is *“*destroyed or so injured by the elements, or any other cause as to be ■untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing,” the tenant is entitled to surrender if the injury occurred without his fault or neglect. That contention is made too late, but manifestly the evidence affords no basis for it because the premises, while less serviceable than defendants expected, were not ■untenantable.

*628It must be assumed in view of the instructions that the jury at least found that the premises were not in a dangerous condition, and that is clearly shown by the evidence. The building was reconstructed in conformity with the requirements of the Building Code, and the only scintilla of evidence tending to show a dangerous condition is the testimony of one witness to the effect that in his opinion the floors were hable to collapse owing, not to the weight they carried, but to the fact that the joists supporting them were not properly secured and would lay over on their sides under the traction impact of the automobiles; but this condition the plaintiffs were willing to remedy. Moreover, the plaintiffs did not interfere with the premises in any manner after the defendants took possession and the premises did not become any more dangerous after defendants took possession than they were when they first entered into possession of the respective parts of the building. If, therefore, there was any breach of covenant on the part of the plaintiffs it existed at the time defendants took possession and was fully known before the term proper commenced and would, therefore, constitute no defense to an action for the rent. *(Kelsey*v. *Ward,*38 N. Y. 83; *Nichols*v. *Dusenbury,*2 id. 283; *O’Brien*v. *Smith,*13 N. Y. Supp. 408; affd., 129 N. Y. 620; *Thomson-Houston Electric Co.*v. *Durant Land Imp. Co.,*144 id. 34; *Allen*v. *Pell,*4 Wend. 505; *Etheridge*v. *Osborn,*12 id. 529; *Bentley*v. *Taylor,*39 N. W. Rep. 267; *Cantwell*v. *Burke,*6 N. Y. St. Repr. 308; McAdam Landl. & Ten. [4th ed.] 372.)

The argument that the tenants were unable to discover the defects until they came to store automobiles on the different floors is without force. They did not, upon making such discovery and upon ascertaining that the landlords would not remedy the alleged defects, assert any right to remove from the premises forthwith but on the contrary remained in possession not only during the period prior to the commencement of the term, and for which no rent was reserved, but *as tenants*for one entire month of the term, and in such circumstances their remedy for any breach of covenant on the part of the landlords not amounting to an eviction was to counterclaim their damages or bring an independent action therefor. We are of opin*629ion, therefore, that the plaintiffs were entitled to recover the rent reserved.

The defendants offered evidence tending to show that the plaintiffs did not reconstruct the building in accordance with the plans and specifications and presenting questions of fact with respect to their claim that the plaintiffs failed to perform their contract, but we find no competent evidence received or offered in behalf of the defendants tending to show substantial damages which would warrant a recovery of more than nominal damages. The appellate court is neither required to grant a new trial nor to modify a recovery in an action such as this for a failure to deduct nominal damages. It is unnecessary, therefore, to consider the other questions arising with respect to the charge and the refusals to instruct the jury.

It follows that the judgment and order should be affirmed, with costs.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment and order affirmed, with costs.