#### *Westlake *vs.*De Graw.

An action lies for *use and*occupation, though the tenant has deserted the demised premises, if the contract still remains in force; if the tenant voluntarily abstains from the occupation, it is no defence, *ij*

A tenant, after entry, is liable for the rent agreed to be paid, though the demised premises are in an unhealthy condition; if the inconvenience, whatever it be, can be readily removed, it should be done, and the damages of the tenant set up in extinguishment or reduction of the rent; but if the tenant enters with knowledge, or means of knowledge, of existing circumstances, he cannot claim a reduction; and in such case, though it be ruled on the trial that he is not entitled to show that the premises were *uninhabitable,*but must bring a cross action' to recover his damages, a judgment will not be reversed, if it be manifest that by such decision he has not been injured.

Error from the New-York C. P. De Graw brought an action of assumpsit against Westlake for the *use and occupation of a house.*Westlake had hired the premises for one year, at a rent of §601 annually, payable quarterly. The rent of the two first quarters was paid, when the defendant left the premises, alleging that they were uninhabitable,.by reason of intolerable stenches pervading the basement and other portions of the house. The action was brought for the third quarter’s rent, due 1st February, 1839. It was proved that soon after the defendant took possession of the premises, he and his family were greatly incommoded by the stenches, that the house was uninhabitable on account thereof, and that the defendant was advised to remove from the house on account of the danger to the health of himself and family. About the middle of September, the defendant requested the plaintiff to cause the difficulty to be removed by repairing the house or otherwise. The plaintiff accordingly sent a mechanic for that purpose, who satisfied himself that the stench proceeded from *dead rats*under the floor, or 'elsewhere about the premises ; and told the defendant that he would have to take up a part of the basement floor, and part of the plastering, to get at the cause of complaint and remove it. The defendant told him he might do what he *511chose, hut that he, the defendant, would not stay In the house; and accordingly, at the expiration of the second quarter, quit the premises. *In May, 1839, another tenant took possession of the premises, [ *670 ] and there was then a very bad stench, particularly in the basement, which, on examination, was found to proceed from six or eight *dead*rats, lying under a step, which had probably been killed by arsenic. There was a large grocery kept on the first floor of the building. It was proved on the part of the defendant, that the plaintiff, with his family, resided in the house for several years, up to the first day of May, 1838 ; and whilst he resided in the house there was a bad smell there; sometimes very disagreeable, and at other times less offensive; it was supposed to proceed from dead rats. The evidence of the house being uninhabitable, was given as well for the' purpose of excusing the defendant from payment of the rent on account of the state of the house, as for the purpose of showing *fraud*on the part of the plaintiff, either in *concealing*the fact of the existence of the noxious smells, or in making false representations on the subject. The counsel for the plaintiff objected to the testimony, insisting that the fact of the house being uninhabitable could not be shown in this action in excuse of payment or reduction of damages; but that the defendant must resort to his action to recover damages. The presiding judge ruled that the evidence was inadmissible for the purpose of excusing payment or reducing damages ; but that it was proper for the purpose of showing *fraud*on the part of the plaintiff. The defendant *excepted*to the first branch of this decision. The judge charged the jury, that if the house was uninhabitable when the defendant entered, or subsequently became so, by reason of any noxious smell, the defendant must pay the rent, and bring his action for damages, unless the plaintiff had been guilty of *fraud;*and if they should find that the plaintiff had been guilty of fraud, they must find a verdict for the defendant. To the first branch of the charge the defendant *excepted.*The jury found for the plaintiff, and judgment being entered upon such finding, the defendant sued out a writ of error.

*W. C. Noyes,*for the plaintiff in error,

insisted that the action for *use and occupation*does not lie, unless the premises have been *actually *occupied,*or the omission to occupy them is solely attributable [ *671 ] to the tenant. That here the hiring manifestly originated in error ; the premises were unfit for occupation, and the tenant had a right to leave them; and having done so, and received no equivalent for the rent agreed to be paid, the landlord was not entitled to recover. In support of these positions, he cited, 7 *Car. & Payne,*610; 9 *Id.*378; 4 *Id.*65; 2 H. *Black*319; 3 *Adolph. & Ellis,*659 ; 7 *Deacon & Ryl.*117; *Ryl. &*Moody, *268;*1 *Brod. & Bing.*50 ; 2 *Moody & M.*112; 1 *M. & Rob.**512112; 5 *Taunt.*518; 1 *Domat, Book*1. *tit. 4,*§ 3 ; 8 Cowen, 727 ; 4 *Wendell,*505 ; 12 *Id.*529 ; 22 *Id.*155 ; 3 *London Jurist,*653 ; 4 *Id.*506. He also insisted, that the evidence that the premises were uninhabitable was admissible in extinguishment or in reduction of the damages, and that the judge erred in deciding that the defendant must resort to a cross action.

*J. Greenwood,*for the defendant in error,

insisted, that the landlord not having been guilty of any fraud in the letting nor of any subsequent wrongful act of omission or commission ; and the tenant having entered and occupied the premises, the landlord was entitled to recover, 2 *Starkie’s Ev.*853, 858; 4 *Taunt.*45 ; 2 *Selw.*551. He further insisted that the tenant quit in his own wrong. He knew, or might have known, the condition ofthe premises when he hired them; he knew there was a grocery kept ip the building, and might have anticipated the consequences. The nuisance was of an abateable character, and the tenant should have removed it; instead of doing so, he declined having it abated by the landlord.

*By the Court,*

Nelson, C. J.

The landlord may recover in the action for use and occupation, though the tenant has deserted the premises, provided the contract still remains in force; in the language of *Gibbs, C. J.*in *White, head*v. *Clifford,*5 *Taunt.*503. the action depends upon actual occupation, or upon an occupation the defendant might have had, if he had [ *572 ] not voluntarily abstained from it. See also 2 **Starkie’s Ev.*353, and cases, 5 *Bing.*N. *C.*501; *Comyn’s Land. & Ten.*450 ; 4 *Taunt.*45.

Then, was the defendant justified in putting an end to the lease on account of the noxious smell, set up as a defence in this case ? It must be assumed, that no fraud was practised upon him by the plaintiff, as that has been negatived by the jury. It appears, also, that the alleged nuisance existed at and before the defendant made the contract and entered into possession ; and that it arose from the carcasses of dead rats under the steps of the house. The discovery was made by the succeeding tenant; and it seems to me that ordinary vigilance on the part of the defendant would have enabled him to have done the same. He not only appears to have been remiss in this respect himself, but even refused to allow a me. chanic, sent by the plaintiff, to take the necessary steps to detect and remove the cause of the nuisance. It was readily removable when discovered, and in its own nature was of but temporary duration. It is an inconvenience to which all dwellings are more or less subject at times; but which, with ordinary skill and attention, may be abated by the tenant. It would, I apprehend, be the introduction of a new principle into the law of landlord and tenant, and one liable to great abuse, to give countenance to this defence.

*513In the ease of *Izon*v. *Groton and another,*5 *Bing. N. C.*501, the upper rooms, which the defendants occupied, had become uninhabitable on account of damage done accidentally by fire, yet this action was held to lie for rent accruing subsequent thereto, until the regular termination of the tenancy. The defendants held under a parol lease from year to year, which terminated on the usual notice.

I do not deny, but that, if the defendant had been entitled to damages for not repairing in this case, they might have been set up by way of reducing or extinguishing the rent within *Reab*v. McAlister, 8 Wendell, 109, and kindred cases. This view was not intended to be questioned or impaired in *Etherbridge*v. Osborn, 12 *Wendell,*529, by the late chief justice. That was an action of replevin by the tenant, whose property had been distrained for the rent; the ground taken by him was, that the breach of covenant of the lessor *in the particular case deprived *[**673 ] the tenant of the full enjoyment of the premises, and. operated as a virtual eviction. This ground was denied, by the chief justice holding, that the breach did not amount to an eviction; and that the only remedy was an action upon the covenant. Had the landlord sued for the rent instead of resorting to the remedy by distress, the doctrine of *Real*v. *McAlister*would have been applicable.

In the case before us, though the court, I think, erred in holding, that if the tenant was entitled to damages for not removing the nuisance, he must resort to his cross action, and could not set them up by way of defence to the rent; still, as we are of opinion that no right to such damages legally existed on the part of the defendant, as the inconvenience was one that did not come within the contract of the landlord to remove, no injustice has been done, and the judgment of the court below should be affirmed.

Judgment affirmed.