#### Herman Koehler, Respondent, *against*Joseph Scheider, Appellant.

(Decided April 1st, 1889).

In an action for installments of rent for the months of March and April, the defense to which was eviction, it appeared that the tenant had vacated the demised premises on March 1st, and that judgment had been recovered against him by the landlord for the installment of rent for the preceding February. *Held,*that such judgment was not a bar to the defense of eviction, as that defense could not have been pleaded in the former action, the eviction not being complete until the tenant vacated the premises.

Appeal from a judgment of the General Term of the City-Court of New York affirming a judgment of that court entered upon a verdict rendered by direction of the court.

The facts are stated in the following opinion, rendered on the argument of the appeal at the March General Term, 1888.

J. F. Daly, J.—This was an action for rent, and the defense was eviction. Defendant claimed that the letting included, by express agreement, the requisite amount of steam power to run the machinery used by defendant in the business which he then carried on and had previously -carried on in the demised premises, also the requisite amount of steam to heat the premises, and of water to drain the closets and for the defendant’s workmen to drink and wash with; and that plaintiff had neglected and refused to furnish the steam power, steam heat, and water, according to the agreement of letting, after repeated notice and demand from defendant; and that the premises became untenantable from that cause and defendant was compelled to and did remove therefrom on March 1st, 1886.

*199The acts of the landlord in wilfully neglecting to supply the steam power, the heat, and the water which he had agreed to furnish with the premises, deprived the tenant of the beneficial enjoyment of the demised premises, and constituted an eviction. The landlord knew that the steam power was required to run the tenant’s machinery and that without such steam power the premises were practically useless and valueless to the tenant. Had he cut off the steam from the premises it would have been an eviction, just as the cutting off the Croton water would be *(West Side Bank*v. Newton, 76 N. Y. 616, reported in full in 57 How. Pr. 152.)

There is no substantial difference between the act of cutting off the steam power, or heat, or water, and the wilful neglect to supply it as agreed. I do not, of course, speak of an occasional or an accidental omission, but of such habitual or continued neglect as evinces a wilful disregard of the obligations of the contract, and which practically deprives the tenant of that for which he is to pay rent. Nor do I speak of a case where the defects in the supply or service of the steam power, etc., arise from deficiencies in the machinery or appliances which are upon the demised premises, and which the tenant takes, as he does the premises, in the condition in which he finds them, but of machinery and appliances which are upon the landlord’s premises and under his control. In the latter case he is answerable if they are not sufficient or are not efficiently managed, so that the tenant is not put and kept in the possession of what he has hired, but is deprived of the use and enjoyment thereof.

The acts complained of constitute an eviction; but it is contended on the part of the plaintiff that this defense is not available to the defendant, because of a former judgment recovered by the plaintiff for rent previously accruing. That judgment was for the rent of February, falling due on the first day of March, 1886, and the acts complained of occurred during the month of February and prior thereto, but the defense of eviction was not set up in the action for that rent. The judgment would undoubtedly be a bar to the defense if it could have been set up in that action; but it could not *200have been pleaded to the action for the February rent, for the reason that the tenant had not removed from the premises during that month. He commenced to move in February, but it took him some time to get his machinery out, and the last of his goods were not removed until March 1st. This action was brought in May, for the rent of March and April, which fell due April 1st, and May 1st. The defense of eviction was complete when the March rent fell due, and not before, and could not have been pleaded to the prior action.

But it is said that as the acts complained of occurred in February, they might have been set up in the action for the February rent, as ground for recoupment of damages or counterclaim, and that as they were not pleaded in that action for that purpose, they are not available, taken in connection with the subsequent abandonment of the premises by the tenant, in a plea of eviction to the subsequent (present) action. The answer to this ingenious objection is that the defenses are not the same, that we are only concerned with the question whether the defense of eviction _ now pleaded could have been pleaded in the prior action, and as it plainly could not» the judgment in' that action is not a bar.

The tenant removed on the 1st of March, the acts which constituted the eviction continuing up to and upon that day, and this made a good defense to the rent for that and the subsequent month.

The judgment of the City Court should be reversed and a new trial ordered, with costs to abide event.

The judges present at the argument did not agree, and a reargument was ordered.

*George H. Yeaman and Maurice Rapp,*for appellant.

The rule that a judgment is final and conclusive upon all matters which might have been litigated and decided in the action is applicable only to such matters as might have been used as a defense therein, and such as, if again considered, would involve an inquiry into the merits of the former judgment. To such extent a prior judgment is, as a plea, a bar to the *201maintenance of another action which necessarily involves the questions already litigated or which might have been litigated in the former action *(Bell*v. Merrifield, 109 N. Y. 210; *Pray*v. *Hegeman,*98 N. Y. 358 ; *Malloney*v. Horan, 49 N. Y. 111).

The only issue tried in the first action, and the only question submitted to the jury, was, “by whom was the lease made ? ” Facts offered in evidence to establish the issue presented are not themselves in issue, and the judgment is no evidence in regard to them *(Belden*v. State, 103 N. Y. 8). The question of plaintiff’s agreeing to supply steam power, steam heat, clean water, and clean closets, and his neglect to furnish them, was certainly not “ expressly litigated and determined in the former action.”

Neither could the landlord’s cutting off steam, heat, and water have been pleaded and litigated in the action for the February rent. A constructive eviction is no bar to a recovery of the rent unless accompanied by abandonment of the premises *(Edgerton*v. *Page,*20 N. Y. 281; *Boreel*v. *Lawton,*90 N. Y. 293 ; *Academy of Music*v. Hackett, 2 Hilt. 217.) Until the premises were vacated, the defense of eviction was not complete ; but it became a complete defense to the action for rent for March and April *(Remington Paper Co.*v. *O'Dougherty,*81 N. Y. 489). The case of *Rogers*v. *Ostrom*(35 Barb. 523), cited by the General Term, far from being against the appellant’s position, is directly in point. In that case, the tenant abandoned the premises. And the cases of *Davis*v. *Talcott*(12 N. Y. 184) ; *Griffin*v. *Long Island R. Co.*(102 N. Y. 452) ; *Smith*v. *Smith*(79 N. Y. 634) ; and *Tysen*v. *Tompkins*(10 Daly 244), are not in point.

*E. J. Myers,*for respondent.

The judgment for February rent conclusively established performance by the landlord of every covenant and condition necessary to enable him to recover the rent for that month *(Tysen*v. *Tompkins,*10 Daly 244; *Goodsell*v. *Western Union Tel. Co.,*55 N. Y. Super. Ct. 173 ; *Griffin*v. *Long Island R. Co.,*102 N. Y. 449, 452; *Smith*v. *Smith,*79 N. Y. 634 ; *Beatty*v. *Swartwout,*32 Barb. *202293; *Raymond*v. *Richardson,*4 E. D. Smith 171 ; *Schermerhorn*v. *Van Allen,*18 Barb. 29 ; 2 Abb. Forms 14,15, and notes; Mayor, &c., v. *Mabie,*13 N. Y. 152 ; *Davis*v. Talcott, 12 N. Y. 184; Herman Res Adjud., § 247 ; *Rogers*v. Ostrom, 35 Barb. 523; *Pray*v. *Hegeman,*98 N. Y. 351, 358; *Patrick*v. *Shaffer,*94 N. Y. 423, 430 ; *Dunham*v. *Bower,*77 N. Y. 76, 79, 81; *Tuska v. O'Brien,*68 N. Y. 446,449). No matter of defense which impeaches, contradicts, or reverses the legal effect of the former judgment can be interposed in any subsequent action *(Lawrence*v. *Hunt,*10 Wend. 83; *Griffin*v. *Long Island R. Co.,*102 N. Y. 452; Herman Res Adjud. § 211 and cases cited). The defense of non-performance was submitted to the jury in the action for February rent and passed upon by them. It cannot be unsuccessfully used as a defense of non-performance in one action and as a defense of eviction in a subsequent action (2 Whart. Evid. § 779; Herman Res Adjud. §§ 121, 237, 238, 245, 268 ; *Morgan*v. *Plum,*9 Wend. 287, 293; *Birkhead*v. *Brown,*5 Sandf. 134, 145).

The question of performance, viz., furnishing steam power, heat, and water, was one of the material facts directly involved within the issues of the prior action *(Bell*v. Merrifield, 109 N. Y. 210; *Goodsell*v. *Western Union Tel. Co.,*55 N. Y. Super. Ct. 173, 186; *Bogardus*v. *Hew York L. I. Co.,*101 N. Y. 328, 334; *Malloney*v. *Horan,*49 N. Y. 111, 116; *Vann*v. *Rouse,*94 N. Y. 401, 407; *Tysen*v. *Tomkins,*10 Daly 251; *Furey*v. *Gravesend,*104 N. Y. 405).

The defense created by the general denial (of plaintiff’s performance) in the prior action, and the defense of eviction by failure to furnish power, heat, and water, are the same in substance, requiring the same proof, and the former defense is a bar *(Rogers*v. *Ostrom,*35 Barb. 523; *Edgerton*v. *Page,*20 N. Y. 286; *Academy of Music*v. *Hackett,*2 Hilt. 217). If the fact of performance was within the issue of the prior action, in order to enable plaintiff to recover (expressly decided in *Goodsell case,*55 N. Y. Super. Ct. 185), the *Remington ease*(81 N. Y. 490), cited by appellant, is precisely in point.

*203No authority can be found for the proposition that a defense of constructive eviction can be interposed for acts done . during a period for which rent has been recovered by a judgment on the merits upon a trial between the parties. The question was expressly omitted from the decision in *Boreel*v. *Lawton*(90 N. Y. 293, 297). *Remington*v. *O’ Dougherty,*cited by appellant, is more in favor of respondent than against him; and *Edgerton*v. *Paige,*and *Academy of Music*v. *Hachett*(above cited), are authorities in favor of respondent.

On the other hand, a recoupment for damages may be had in an action for rent, and, the tenant’s defense being thus available, a former recovery precludes him from alleging that the landlord was guilty of acts and omissions which render such former recovery *quasi*fraudulent.

Larremore, Ch. J.

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 the rent of the same premises for February, 1886, operated as a bar to all defenses raised in the present action. In this, I think, error was committed, and I concur in the opinion rendered by Judge Daly after the former argument. Granting that, under the doctrine of *res adjudicata,*a prior judgment recovered in an action between the same parties becomes a bar to all defenses actually raised or which might have been raised therein, the question arises whether the defense of eviction, relied on in the case at bar, could have been successfully interposed in such former action. It appears that defendant did not vacate the premises until March 1st, and I am therefore of opinion that he could not have pleaded eviction as the defense to the February rent. In *Edgerton*v. *Page*(20 N. Y. 281) it was said by Grover, J., that “ The true rule from all the authorities is, that while the tenant remains in possession of the entire premises demised, his obligation to pay rent con*204tinues.” Again, in *Boreel*v. *Lawton*(90 N. Y. 293), the Court of Appeals says: “ But we know of no case sustaining the doctrine that there can be a constructive eviction without a surrender of .the premises. It would be manifestly unjust to permit the tenant to remain in possession and, Avhen sued for the rent, to sustain the plea of eviction by proof that there were circumstances which would have justified him in leaving the premises.” • This is only another way of saying that one cannot raise the defense of eviction unless he has been evicted. A tenant is evicted when he vacates, either because expelled by actual force, or because the landlord has been guilty of such faults of commission or omission in relation to his duty toward the premises, as to deprive the tenant of the beneficial enjoyment thereof. A tenant may not remain- in possession, and, because circumstances exist which would have authorized him to leave, treat the matter as if in reality he had vacated. This is the erroneous theory on which the General Term of the City Court seem to have proceeded in both of their opinions rendered in this case. It makes no difference whether, if the lessee remains in possession, he may or may not be permitted, Avhen sued for rent, to, counterclaim for breach of covenant on the part of the lessor. ■ That question does not arise here. The defendant sets up eviction as a defense, and he could not have raised such"defense in the former action, because he continued in possession during the Avhole of February.

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 until 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, *205meritorious defense, and be obliged to pay the rent for the full term,, though the landlord had violated all the covenants of a 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 they were 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 upon 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.

Bookstaver and Allen, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.