#### Palmer *v.*Wetmore.

*A*landlord who owns land adjoining the demised premises, has a right to build on such land, though he may thereby obstruct and darken the windows in the tenement demised.

Such an act exercised on land not embraced in the demise, cannot operate as an eviction, even if it were a ground for damages.

January 26;

February 9, 1849.

Covenant on an agreement to pay the rent of the house and lot No. 832 Broadway, if default should be made in payment by the tenant, Julia A. Wetmore. The demise was for three years *from*May 1, 1847, at $700 per annum, payable quarterly, and the rent claimed was for the quarter ending Nov. 1, 1847. The defence was an eviction of the tenant by the plaintiff, prior to November 1, 1847, in several modes set up in the plea.

At the trial before Sandford, J., in June, 1848, the proof of eviction was rested on two grounds, only one of which it is deemed necessary to mention.

It was shown, that the plaintiff owned several vacant lots of ground on Fourteenth street, the most westerly of which adjoined the east end of the lot demised *to*Miss Wetmore, and extended a considerable distance both to the north and the south, beyond the north-east and south-east corners of that lot. In the summer of 1847, the plaintiff commenced the erection of a large hotel on his Fourteenth street lots, the western wall of which was built on the line of the lot so bounding the demised premises on the east. This wall was from fifteen to eighteen feet distant from the rear of the house demised, and as it advanced in height, obstructed the light entering the rear windows *317of the latter. When the wall reached two stories in height, it darkened the kitchen so that lamps were requisite there in the day time; and it interfered with the free circulation of air. The hotel wall was finally carried to the height of six stories. The windows in it opened upon the back yard of the house in question. Miss Wetmore abandoned the demised premises, about the middle of October, 1847.

The defendant claimed that the evidence established an eviction of the tenant by the acts of the plaintiff, in respect of light and air, and as to the value of the premises as a boarding house, for which she had hired them.

The judge charged the jury, that the testimony in regard to light, was not to be taken into consideration. That the plaintiff had a right to erect any building he chose on the adjoining lot. The mere fact that the demised premises had less light in consequence of the hotel building, was not sufficient to constitute an eviction. The jury rendered a verdict for the plaintiff; and the defendant moved for a new trial.

*W. C. Prime,*for the defendant.

*W. P. Lee,*for the plaintiff.

By the Court. Oakley, Ch. J.

The defendant’s counsel strenuously contends, that the rule which authorizes every man to use his own property as he sees fit, not trespsssing on his neighbor’s rights, does not apply to a landlord in respect of his lands adjoining premises demised by him; and that such landlord cannot use or improve his adjoining lands in any manner that will interfere with the use or enjoyment of the demised premises in the possession of the tenant. That the relative condition of the two lots must continue the same throughout the term, if any change in the state of the lot not leased, will in any degree lessen or prejudice the enjoyment or uses of the lot demised.

We have examined the question, and do not consider the distinction made as to a landlord’s property a sound one. Where there is no question of ancient lights, (and there is none *318in this case,) the owner of a lot adjoining a house, may so improve or build upon his lot, as to shut up the windows of such house that are situated in the end or side adjacent to his lot. If this were not so, he would be deprived of the full benefit of his own property. We perceive no reason why a landlord, in respect of his tenant, is more restricted as to his vacant lots, than he would be in respect of any other owner for years, or in fee, of an adjacent house.

But if an action could be sustained for damages in such a case as this, there was clearly no eviction of the tenant. The exercise of a right which appertained to the plaintiff as the owner of the adjoining land, could not amount to an eviction of the tenant of another lot.

Motion for a new trial denied.