The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-01-26
Cou,t on Com,non Pleas.

Court OF Common Pleas.
JAN. 2b,-Edgerton va Page.-This sction before ar
gued demurrer to srswer before Woodruff, Justice,
md demurrer sustained is presented demurrer
to antwer at special term Of the Common Pleas. The
facts sufficiently appear in The opinion:
BRADY J.-This action commenced to recover one
qusr err rent Of the focr # the premises No. g.
Fulton street, ending lat OF May 1867 under hiring for
one year from lst sy, 1854 wiz. the privilege Of one
ing alleges THAT the enewsl provided for in the
lease he main pducement the taking Of lease,
and the principal cause OF IT'S value That between LIST
day OF Faorpary 1866, snd Int May, 1866 the plaintiff
he occupant OF he en'reupper part " the premises
10 question ano also premises No 10 Fulton street.
That between nose days the plaintiff neghgenty
and waDtsniy suffered waste pipe pipes, which
part Of premises No 8 snc No 10 Fulton street, and
attached thereto, and Witch extended down along
the rear of III, ee premises and communicated With
the sever, get cut OF oraer and become undt tor
The purpose for which they were intended And fur
,her that in corfe4usDce the ef waste aud other
brh flowed though the pipes and leaked and escaped
hsIeflom into and upon the ceiling floor and other
parts Of the deusd premi,es In erisrng With and de-
and beneficial enjoyment f he premises, and injuring
and destroying the properly Of the defendant That the
plaintiff knew the condition OF he pipes and the injury
70 the defendant stated ana ooad have prevented It
by ordinary and vigilance his part. That, Al
though requested :. divers times, commencing with the
list Of February, 1855 ending with the 1st Of Nay
1862 to repair the waste pipes abstain from the Of
Them, he did 1ei,her That sequence Of
the defendant obliged TO sbanion the de-
missed preniaes, aud deprived of the privilege to
renew his term, If which he intended to have awaited
hn.ef That the plaintiff and sis servants neggently,
otherwise, at divers times during the period last
mentioned, from the premise. occupied y him,
misses Of the defendant and injured his property.
That, under The circumstances the defendant de-
ed for rent, alleged in The complaint, that the
plaintiff is entitled any judgment against him. The
to eviction, and bar the plaintiffs recovery.
But not SLOWED as such, alleges that he will recoup
way 10 be held by the Curt The plaintiff demurs
70 the several grounds stated In detail but to
the defence Of eviction for the following reasons:-
First That the facts do not Gods isute eviction.
secondly-lbat the interior disturbance Is not
tantsmount 10 eviction before the leaves the
premises. BE cannot he evic,eo and still occupy; and
Thrdly--Recause he defendant did not leave the de-
missed p until after the expiration Of the term
and until the rent hsd fallen Que by the terms Of the
tract.
1t was conceded the Argument that by the well
settled law Of This State there must be entry and
deliberate dis,ur ,aDce of the Possession depriv-
ing linn Of ,hs bepebcial enjoyment OF the densed
Of the rent Dyett peadleton Cow, 1877 Ogvie vs.
Hill, Bill, 81; Cohen Dupont, Sand s. c. X. 260;
and Chief Justice Nelson In Ugi vie Hull supra SAYS
that no general principle is better settled
fo1my adhered no." II iosisted however, By the
counsel for The plaintiff that if the facts were held
sufficient 70 create eviction yet the defendant did
not abandon the pTensts before the reut became DUE
the eviction was NOR complete That this and iudrsi
inv oved election by the tenant to be niaed by
quitting the premises and could svcted
s occupy as The defendant 10 this case had DONE
think it would he difficult to present stronger case
than Of the deendant For period Of thres @onths
with full Of the coalition Of the pipes and Of
be injury to tbs defendants property and although
nit'ed the wster to flow utterly regardless Of his
aty landlord Of the rights of bis tenant. The
and disturbance which their condition caused
and created could have been obviated either
use In the case Of Cohen w. Dupont supra the tenant
was to The snnoysnces the landlord and hts
ismily not directly affecting the apartments Of the
thereof The prineiple facts however, were that the
tenant being oep.ist had calls upon him for
muDg the bell com PEELED the vsters of the tenant to
main ut the door from fifteen to twenty minutes With
out efectirg And II insisted that this
persisted In would seriously impair If not destroy the
tenants business The plaintiff did not regard the
moDsn snces Of The tenant against these acts and the
jury cecoed that the acts complained OF evc-
oD. The Court coneurred In that conclusion and It
certainly viii be perceived that the
Joy Of the premises remotely the only disturbance
being the access thereto and not within them involving
In this care lie disturbance goes 10 the entire,
cense, and is attended by the destruction not Of the
business PROFITS, but the properly Of the defendant
able assume from all the facts divuIged, that the
pipes were uled in common between the parties, :
the plaintiff il the duty the tenant 10 protect
himself. No precedent is believed, can be found for
demurrer more especially If that assumption would
conflict with the facts admitted BY the demurrer
tier the is have ,.srs
from pipes used by the plaintiff 10 his part Of the pre-
misses, over which he bad CONTROL but which control he
neglected to exercise The had not covenanted
to repair and he had his covenant would extend only
to bis deme, Of which the pipes formed part That
tuIhapce hy roreess,en does not il the absence Of
any oblsa 6un t. do so destroy the legal effect Of
svcoD Inc oGetTns Of self protection 10 that respect
land in Dyet psndeton, in the 4th Cowen, $751; but
the Court Of Err when that case was decided there,
plain and obvious that 1t the duty of landlord
who creates . nuisance disturbance to sbate
ps thu. mined thns the ne acts s.red IN
the sufficient to sustain the defence Of evc
tor only airy to consider the effect OF the de-
endants continuing possession until the rent became
DUE Prior TO the decisicn in Dyett PEN
deton, entry by the landlord and expulsion of the TO-
eviction the Of Bennett. Bttle and whether
Rowle, $780, ia regarded leading authority that
subsequent TO Uyett Pendeton recognizing the
doctrine Of eviction by the disturbance Of the tenant In
his pott esson However that may be- the effect Of an
eviction by entry and expulsion and Of constructive
eviction oecasontd by the the possession
Of the tenant required by the rule different In the
former the rent Is extiIguished absou ely once and
In the latter Il is suspended only during the oontnu
Of such 6istur Sance unless tenant abandona
the premises therefor. IL ia that tho eviction In
either take place before the rent becomes
IT results from disturb nos long that disturb.
iirepished, upless continued whole period for
which rent would accrue under the lease, or unless
the tenant abandon as sboye stated The defendant was
not thei obliged to abandon the premises make
the interruption Of lis poeeesson available deeoce
Such interruption continued during the whole Of the
quarter and suspended the rent while IL contiaued
deem II discuss the other ques pre-
ent.d upop the right Of the defendant recoup or In
any way n'e,pse bis damages in this ASTON resulting
rem the acss implanted Of regarding those accs as
respases merely although have little doubt that the
RUE sppli. able sted by Judge Woodruff 10 levy VS.
Bond, lat Smith, &. r. Rep 173 and in Drake vs. Cock
rot, o How. n Rep S82 A the defence however u
enc which should be passed upon by trial. the judgment
will be for the defendant win bsrty to the plaintiff TO
withdraw the ctnurier and to reply necessary within
twenty days, payment Of he of The issue Of law
The Mayor dc, Us. Edmund 4. II Gibson Appeal OF
defendants tom taxation Of costs by the Clerk Sustan-
ed.
Ber.jomtn Hardy r The Seond Apeew Railroad Ohm
Idhy-ho'op 10 ismirs appeal denied without costs.
He'd IN this case that the time to sppea from judgments
IL A6~- 4. IL vc