#### M. J. TRUESDELL, Administratrix, etc., Plaintiff, *v.*HENRY BOOTH, Defendant.

*Tenant—surrender of premises by*— *chap.*345, *Lems of*1860.

A tenant who, by Ms lease, agrees to make all necessary repairs, cannot surrender the possession of the premises and refuse to pay rent, on the ground that the walls of the house were unusually damp, and that in consequence thereof his family became and remained sick for some time.

*101Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, a verdict having been directed for the plaintiff at the Circuit.

*O. J. Wells,*for the plaintiff.

*Henry Brodhead*and *D. G. Harriman,*for the defendant.

Tappen, J.:

The defendant hired a dwelling-house from the plaintiff, and after entering into occupation, he .paid rent up to a certain time, and gave notice to the plaintiff that he would not be bound, and would not remain for the remainder of the term; and he abandoned the premises. The reason given by the defendant is, that the premises were not tenantable. The house was a brick dwelling in Suffield street, Brooklyn. The defendant alleged the walls to be unusually damp, and that his family became and remained sick for some time by reason of such dampness. The plaintiff refused to receive the premises, and brought this action for rent. After testimony on both sides, the court ordered a verdict for the plaintiff for the sum claimed, and directed the defendant’s exceptions to be heard" at the General Term in the first instance. The defendant’s request to go to the jury was refused.

The tenant, in addition to the yearly rent of $800, also covenanted to make necessary repairs. The landlord’s agent testified that this covenant had the effect of reducing the rent slightly, as compared with the rent paid by a prior tenant. There was no covenant to repair on the part of the landlord ; no act amounting to an eviction on his part is shown ; and wrongful acts of the landlord, which are mere negligence or trespass, do not bar the rent; * although the rule is otherwise where the landlord creates a nuisance near the premises, or is guilty of acts which preclude the tenant from the beneficial enjoyment thereof, provided, in such case, the tenant shall abandon the premises by reason thereof † Vermin or noxious smells in and about the house, do not constitute eviction, so as to justify abandonment of the premises by the ten*102ant. * The case presents no fact whereby the right of abandonment can be held to have accrued to the tenant for any act or omission of the landlord. Reference is made by the tenant to chapter 345 of the Laws of 1860, which provides as follows: “ The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.” The construction given to this statute in *Suydam*v. Jackson, † does not make it available as a defense in this action.

We see nothing in the case which, by operation of law, exonerates the defendant from his liability to pay the rent; and the plaintiff should have judgment on the verdict, with costs.

Present — Barnard, P. J., Tappen and Gilbert, JJ.

Barnard, P. J., dissented.

Judgment for plaintiff on the verdict, with costs.

*

 Edgerton v. Page, 20 N. Y., 281; Ogilvie v. Hull, 5 Hill, 52.

†

 Dyett v. Pendleton, 8 Cow., 728; Gilhooley v. Washington, 4 N. Y., 217.

*

 Westlake v. De Graw, 25 Wend., 669; Vanderbilt v. Persse, 3 E. D. Smith, 428.

†

54 N. Y., 453.