#### Cram *v.*Dresser.(a)

In an action for the recovery of rent, upon a lease which provided for the landlord’s entering on the premises to make repairs during the term, the tenant cannot *recoup*his damages occasioned by negligent and tortious behavior of the landlord and his servants, in making such repairs.

The injury in such a case, does not arise from the breach of any covenant or stipulation of the landlord; nor does it grow out of the terms or consideration of the contract entered into between the parties. It is as distinct and independent a wrong, as any committed upon the the tenant by a stranger.

A wrongful act of the landlord, causing great inconvenience and trouble to the tenant’s family, and keeping the demised tenement in confusion and disorder for a long period; cannot be set up as an eviction, where the tenant has continued in possession for a year after the injury ceased.

On a formal lease for one year, was indorsed an agreement continuing it another year at an advanced rent. During the latter term, a second agreement was indorsed, whereby “ the within lease” was “ extended the further period of one year, without alteration.” *Held,*that both the previous instruments were intended by the expression, “ within lease.”

Sept. 36 ;

Sept. 30, 1848.

Covenant for one quarter’s rent, $150, reserved in a lease of a dwelling house. Plea, *non est*factum, and notice of set-off, and other special matter, as hereafter stated.

At the trial, before Oakley, Ch. J., in April last, the plaintiff proved and read in evidence, a lease of the house from him to the defendant, dated March 13th, 1844, for one year from May 1st, 1844, at the yearly rent of $550. Among other provisions in the indenture of lease, was the following:

“ And it is further agreed, that the said party of the first part, or any person or persons by his orders, shall be permitted to enter the said premises, at such reasonable time of the day as he shall think proper, to examine the said premises, or to make such necessary repairs and alterations therein, as he shall think requisite.”

*121Indorsed on the lease were two instruments, each signed and sealed *by*the parties, the first of which was in these words :

“ *New York, September*15, 1845.—It is hereby agreed, that the within agreement shall extend from May 1, 1845, at the rent of six hundred dollars per year. This is the only alteration. All other matters to remain as named within.”

The second instrument was as follows:

“ *New York, February*18, 1846.—The within lease hereby -extended for the further period of one year, first day of May, 1846, without any alteration.”

The plaintiff having rested, the defendant introduced in evidence, receipts for the rent, showing it paid to February 1st, 1847 ,• all the payments, subsequent to May 1st, 1846, being at the rate of $150 per quarter, and were so receipted.

The defendant then offered to prove, that in the spring of 1846, the plaintiff sent painters into and upon the premises to paint the house ; and offered to prove in his defence, the facts contained in his notice attached to his plea, and which are therein stated as follows:

“And also take notice, that the said defendant at the trial of this cause, will, under the said plea above pleaded, also give in evidence, that the said plaintiff, during the occupancy of the said defendant under the lease, and continuance thereof in said declaration mentioned, in disregard of the said defendant’s convenience, peaceable use, and proper enjoyment of the premises in said declaration mentioned, and in violation of the covenants made on the part of the said plaintiff with said defendant, in the indenture in said declaration mentioned, entered said premises with his workmen, laborers and servants, to paint the walls of sundry rooms and parlors in said premises, and by and under his directions, said workmen, laborers and servants, did paint the walls of sundry rooms and of the parlors in said premises, and in such an unworkmanlike manner as to injure, deface and destroy the appearance and decent looks' of said rooms and parlors, using the most improper and worthless materials for the same, and merely rendering said rooms and parlors of but *122little advantage and value to said defendant. That said painting was delayed and protracted to an unreasonable and unne- . cessary length of time after it was commenced, whereby defendant’s family were put to great inconvenience and trouble, and his house kept in disorder and confusion during all said period, so taken up in the said painting of the rooms and parlors thereof. And by reason of the premises, and the said unreasonable and unwarrantable delays in completing said painting, great damage has been sustained by said defendant, which he will seek to recover by way of recoupment of damages, at the trial of this cause.”

The counsel for the -plaintiff objected to this evidence as irrelevant, and constituting no defence, either in bar or in mitigation of damages. The judge excluded the testimony, and the defendant excepted.

The defendant then claimed, that during the last year, his rent was only $550, and applying his payments accordingly, there was but $100 in arrear.

The judge instructed the jury, that on the evidence the plaintiff was entitled to a verdict for one quarter’s rent at the rate of $600 per year; and the jury gave their verdict for $160. The defendant excepted to the charge, and now moves for a new trial.

*H.*Dresser, for the defendant.

I. The matters offered to be proved by the defendant, were proper by way of recoupment of damages, or to show an eviction of part of the premises by the landlord; and therefore should have been received.

The work was not necessary, as the plea shows. The plaintiff was bound to show it was necessary.

It is to be taken here, that we have shown an injury. As to recoupment, this claim grew out of the same transaction. The authorities fully sustain its application here. *(Reab*v. *McAlister,*4 Wend. 483 ; S. C. in error, 8 ibid. 109 ; *Westlake*v. *DeGraw,*25 ibid. *672; Batterman*v. *Pierce,*3 Hill, *171; Van Epps*v. *Harrison,*5 Hill, 63; *Barber*v. *Rose, 5*ibid. 76; *Whitbeck*v. *Skinner,*7 ibid. 53; *Cleves*v. *Willoughby, 7*ibid. *12383. And see the definition of recoupment, Tomlin’s Law Dict. 814.)

.It suffices to say, that the doctrine is founded on a failure of the consideration for the liability which the plaintiff seeks to enforce, for which failure the defendant is entitled to redress.

If not entitled to recoup the damages, the testimony offered was sufficient to prove an eviction, within the authorities on that subject in our state. *(Dyett*v. *Pendleton,*8 Cow. 727, 731.)

2. The renewal of the lease, on the 18th of February, 1846, for one year from the first of May after, was at the rent of $550; and, as $450 had been paid, the plaintiff was entitled to no more than $100, with interest.

*H. A.*Cram, for the plaintiff.

*1st Point.*1. The facts set up in the notice,, do not make out an eviction.

2. They are not a breach of any contract in the lease, and therefore, are not the subject of recoupment.

The doctrine of recoupment is as yet without definite limits, apparently; but there is no case that goes the length of this.

The entry here was lawful. We were by the lease, the judges of the necessity of repairing. We deemed it necessary, and we entered to paint the house, which was a proper repair. So far, there was no injury or wrong. Then the putting on of bad paint, and the delaying the work too long, were not justifiable ; and those acts constitute the wrong.

There was no eviction, no pretence for it. But there was an injury, for which the defendant might maintain an action, but not assumpsit. And there is no case where a recoupment has been allowed, except where assumpsit could be maintained against the party recouping, either on an express of implied agreement.

In *Etheridge*v. *Osborn,*(12 Wend. 529,) it was refused in an action of covenant for rent, where the defendant sought to recoup damages arising from breach of covenant to repair.

It is defined in *Ives*v. *Van Epps,*(22 Wend. 155,) as a claim *124to withhold damages, for some equitable reason, and it arises^ on some stipulation growing out of the same contract.

In *Batterman*v. *Pierce,*(3 Hill, 171,) there is a rather broader definition by Judge Bronson, viz.: where there is a demand growing out of the same contract *or transaction.*But no adjudged case goes the length of the latter idea—transactions.

Sedgwick on Damages, uses a broader one still; but all his-cases are those of fraudulent warranties, or of negligence, growing out of contract; in all of which assumpsit would lio against the party setting it up.

*2d Point.*After the first year expired, the lease and first endorsement made but one instrument, and the words “the within lease,” in the second endorsement, had reference to the lease and the first endorsement; therefore, the rent for the third year was $600. The acts of the defendant, in taking the receipts in which the rent was stated to be $600, show that this is the proper construction.

(a)

 Oakley, Ch. J., was detained, and did not sit in this case.

By the Court. Sandford, J.

There is no difficulty as to the amount of the rent reserved by the agreement of February 18th, 1846. Although it speaks of the *within lease,*and that made in the preceding year was not within the paper, but was indorsed upon it; the whole instrument shows that both were referred to. The lease was to be *extended ;*which language was appropriate only to an existing lease. If the first lease alone had been in view, the expression would have been “ revived,” or something equivalent. The existing lease which was to be extended, consisted of the two instruments of March, 1844, andjSeptember, 1845, the one within and the other upon the paper, on which the agreement in question was written. And a reference in the latter, either to the one or the other, describing it as an existing lease, would necessarily embrace both.

Next, in reference to the principal ground of defence. It is not denied on the part of the plaintiff, that he was liable to the defendant for damageis, if the painting of the house were done with as bad materials, and with such needless and harassing *125delay, as are stated in the notice. And it is very certain, that the injury as set forth, was one of a serious character. The question is, whether the defendant has any remedy in this action, by way of reducing the amount of the rent due on his lease.

The doctrine of recoupment ■ of damages, on which the defendant relies, was firmly established, by the name of mitigation of damages, or diminution of the plaintiff’s recovery, in *Reab*v. McAlister, (8 Wend. 109;) and in cases falling within its principle, is entitled to the favorable consideration of the courts. Without citing the subsequent cases, we may say, that it has been applied to the reduction of the price of goods sold, where there was either a warranty broken, or fraud in the sale, or a distinct agreement relative to the subject matter, which was broken; to diminish the recovery on a contract for labor and materials, which was not executed faithfully; and finally, a tenant’s damages by reason of the breach of an agreement to repair, have been admitted in his defence to an action brought by the landlord to recover the rent of demised premises. In *Ives*v. *Van*Epps, (22 Wend. 155,) Cowen, J., with whom this was a favorite doctrine, cited Tomlins’s definition of recoupment, and said, “ It is now uniformly applied where a man brings an action for breach of a contract between him and the defendant; and the latter can show that some stipulation in the same contract was made by the plaintiff, which he has violated. There,” he says, “ the defendant may, if he choose, instead of suing in his turn, *recoupe*his damages arising from the breach committed by the plaintiff, whether they be liquidated or not. The law will *cut off*so much of the plaintiff’s claim, as the cross damages may come to.”

The defendant supposes that the doctrine has been carried still further, in the case of *Batterman*v. *Pierce,*(3 Hill, 171.) It is true, Judge Bronson there says, that “ Where the demands of both parties spring out of the same contract or transaction, the defendant may recoupe, although the damages on both sides are unliquidated,” &c. But the case itself, was an action on a note given for wood sold, and the defence was on an agreement of the seller, forming a part of the contract of sale. *126Indeed, the whole of the learned judge’s opinion, shows that he uséd the word “transaction,” as denoting the whole of a contract and *its*accessories, whether resting in one or more writings, or having mutual or independent stipulations. We do not find any decision going the length of the defence proposed in the case at bar; and we aré unable to bring it within the principle of recoupment. The damages claimed to be recouped, do not arise out of the contract between.the parties. They were occasioned by a tortious act of the plaintiff’s agents; of the same quality as a trespass, although unaccompanied with any force. The acts complained of, are entirely independent of the respective covenants of the parties ; as much so, as a trespass or other act of force committed by a landlord, or even by a stranger, upon the tenant. The circumstance that the plaintiff was authorized to enter the premises and make repairs, is to be left out of view, inasmuch as it does not justify the wrong alleged. Those wrongful acts, therefore, stand as unjustifiable injuries to the defendant’s possession of the demised premises, committed during the term and long after the contract of letting. We do not perceive how they can be regarded as growing out of that contract, or even out of the same transaction, in the sense in which Judge Bronson made use of that word.

Let us suppose that an action is brought for the price of a horse, and the defendant should plead, that the next week after the sale, the plaintiff without permission, took the horse out of the defendant’s stable, drove him out of town, and foundered him. Would such a plea be maintained, either as an entire defence, or by way of recoupment ? Yet it appears to us, that the foundering of the horse in the case put, is no more remote from the contract or transaction of the sale, than is the tortious behavior of the plaintiff’s servants from that of the lease, in the case before us.

As to the argument, that the testimony offered would prove an éviction, it is evidently an afterthought. The notice does not allege any thing of the kind. It proceeds expressly for a recoupment of damages ; and the facts stated, taken in connection with the defendant’s continuance in possession for more *127than a year after they occurred, would not support a plea oí eviction, if it had been pleaded in form.