#### BURKE, Respondent, v. TINDATE, Appellant.

(City Court of New York, General Term.

June 20, 1894.)

Appeal from trial term. Action by Harriet E. Burke against Terry J. Tindate. Stephen C. Baldwin, for appellant. Eustis, Foster & Coleman, for respondent.

CONLAN, J.

The allegations in the complaint are sufficient to have entitled the plaintiff to recover if the case of the defendant failed for want of proof; and, to entitle the defendant to recover, he must prove that he was discharged and released from liability by some act of the plaintiff, or by the deprivation of some right secured to him by the terms of his lease. If, therefore, the defendant’s allegations were sufficient, if proven, to entitle him to recover, then, if his opening embraced the material allegations of his answer, he should not be deprived of a right which threatens him, at the very threshold of his case, with a judgment that carries with it a recovery of all the rent reserved under a lease for years without reaping any of the benefits guarantied to the lessee by a clause in his lease, for quiet enjoyment. It appears that the opening of the defendant’s counsel was not at first taken down by the stenographer, and the court said, addressing counsel, “Unless you can agree upon what the opening was, you would have to repeat it;” and, to the inquiry of the plaintiff’s counsel as to whether he would agree that the opening is contained in the answer, the defendant’s counsel said, “Certainly, I will; I will agree to that right now;” and he then repeated his opening, and at the conclusion of the counsel’s remarks the following-occurred: “Plaintiff’s attorney: We renew our motion for judgment on the pleadings, and on the opening of the defendant’s attorney.” By direction of the court, the jury found a verdict for the plaintiff for $759.55. The defendant thereupon moved for a new trial on all the grounds stated in section 999 of the Code, which motion was denied, and the defendant excepted. We do not deem it necessary to repeat the words of the counsel’s opening, but we think the allegations of the answer, which go to make up the affirmative claim of the defendant, and upon which the opening was conceded to him, were sufficiently stated. If, therefore, the answer sufficiently set out and contained the necessary legal averments to entitle the defendant to recover, alleged as affirmative matter, then the decision of the court below was error which calls for a reversal. We have examined the answer with some degree of care, and are of the opinion that the defendant was entitled to prove each and all of the matters alleged therein, and to go to the jury thereon, and that it would be a denial of justice to hold over him a judgment that subjected him to damages for which he was in no way responsible, and to the enforcement of a clause in a lease to pay rent for premises he could not occupy or use for the purposes of his business, and which were of no use or value to him whatever, without the benefit of the plaintiff’s covenants to quiet enjoyment of all of the demised premises. The fault was not that of the defendant, and he should not be unreasonably dealt with, to his manifest injury, at the hands of a landlord who guaranties, so far as a covenant of quiet enjoyment can guaranty, the peaceable possession of what is described as the premises in the lease. We think the answer was sufficient, and the defendant should have been permitted to prove his defense. The judgment should be reversed, and a new trial ordered, with costs to abide the event.