Daly, J. —
Tbe matters set up by tbe answer are relied upon, either as a bar to tbe action, or as establishing a clai.m for damages against tbe plaintiff, which may be set up in tbis action by way of counter-claim.
It is not denied by tbe answer — indeed, tbe answer admits— that tbe defendant continued to occupy during tbe whole period for which rent is claimed, and tbe first question presented is, whether a tenant, who thus continues in tbe occupation of tbe whole of tbe premises demised, is released from tbe payment of rent because tbe landlord has committed acts which have diminished tbe beneficial enjoyment of tbe premises during tbe period for which rent is sought to be recovered.
[325]*325To occasion a suspension or extinguishment of rent, there must be an eviction of the tenant, and, as this was understood before the decision of Dyett v. Pendleton (8 Cow. 727), it meant that the tenant must be put out of possession either of part or of the whole of the premises demised. Co. Lit. 148, b ; Dorrel v. Andrews, Hob. 190, a ; Reynolds v. Buckle, ibid. 326, a ; Hodgson v. Robson, Vent. 276 ; Pollexf. 142 ; Trumbull v. Bullock, Styles, 446 ; Salmon v. Smith, 1 Wm. Saund. 204, and note 2 ; Hunt v. Cope, Cowp. 243. Thus the form of the plea, as given in Saunders, was, “ and expelled, and removed him, the said Samuel, from his possession thereof, and hept out him, the said Samuel, from his possession thereof.” This was the form of the plea in Dyett v. Pendleton (4 Cow. 584) ; and as some misconception has pr^j| vailed, as to what was actually determined in the ultimate disposition of that case by the Court of Errors, it may be well to review that decision.
To maintain the plea that the plaintiff had expelled him from the possession, the defendant offered to prove, upon the trial, that the plaintiff introduced, into the part of the house' which he occupied, lewd women and prostitutes at various times, keeping them all night for the purpose of prostitution; that he was in the habit of introducing other men, who, with himself, kept company with the women, and who together kept up such noise and disturbance throughout the night, using obscene and indecent language, so as to disturb the rest of persons sleeping in the part of the house demised to the defendant, in consequence of which the defendant was compelled to leave the house before the rent became due for which the action was brought.' It was held by the Supreme Court (4 Cow. 584), that the evidence was properly excluded; that there could be no eviction without an actual entry and expulsion; that the matter complained of simply amounted to a nuisance, which the defendant could have abated by applying to the police; that he was under no necessity, physical or moral, to abandon the premises; and that his abandonment was voluntary, and was no answer to the covenant for the payment of rent.
[326]*326The decision of the Supreme Court was reversed by the Court of Errors (8 Cow. 729), and that judgment of reversal determined merely that proof of an actual entry was not essential to establish an eviction, but that, without an actual entry upon the premises, the landlord might be guilty of acts which, by compelling the tenant to quit the premises, would amount to an eviction, and that, upon the evidence excluded at the trial, the jury could have found that the defendant was justified in quitting the premises, and having done so, that he was released thereafter from any further liability under the covenant in the lease for the payment of rent.
This is all that I understand to have been decided by that case, though it has been supposed to have gone much further. Thus Savage, C. J., in Lewis v. Payne (4 Wend. 428), said, “ In Dyett v Pendleton, it seems to have been held that any obstruction, by the landlord, to the beneficial enjoyment of the demised premises, or a diminution of the consideration of the contract, by the act of the landlord,' amounts to a constructive eviction.” The only foundation for this opinion is to be found in one of the reasons assigned by Senator Spencer, who delivered an opinion for reversal, to show that actual entry was not essential to an eviction.
In referring to the rule, that a tenant, who has been evicted from part of the premises by the act of the landlord, is not obliged to pay rent for the part he retains until he is restored to the whole possession, Senator Spencer says, “As to the part retained, this is deemed such an injury to its beneficial enjoyment, such a diminution' of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent. Here, then, is a case where actual entry and physical eviction are not necessary to exonerate the tenant from the payment of rent; and if the principle be correct as applied to a part of the premises, why should hot the same principle equally apply to the whole property demised, where there has been an obstruction to its beneficial enjoyment, and a diminution of the consideration of the contract, by the acts of the landlord, although those acts do not amount to a physical eviction.”
[327]*327But the ground bere taken, tbat any obstruction by tbe landlord to tbe beneficial enjoyment of -tbe premises demised, or diminution of tbe consideration of tbe contract, amounts to an eviction, was not essential to tbe decision of Dyett v. Pendleton. It is not, and never was tbe law, nor is tbe case an authority for any sucb proposition or principle. If any obstruction to tbe beneficial enjoyment, or diminution of the consideration of tbe contract, will exonerate tbe tenant from tbe payment of rent, then any act of trespass on tbe part of tbe landlord will have tbat effect; and it is well settled tbat something more than á mere trespass is essential to an eviction, however much tbe act of trespass, or successive acts of trespass, may obstruct tbe tenant in tbe beneficial enjoyment, or diminish tbe consideration of-feft contract.
“ Tbe title to rent,” says Bacon (6 Bac. Abr., Rent, L. 44), “is founded upon this, tbat tbe land demised is enjoyed by tbe tenant during tbe term included in tbe contract, for tbe tenant can make no return for a thing be has not. If, therefore, the tenant be deprived of tbe thing letten, tbe obligation to pay tbe rent ceases.” But it was held before Bacon’s time (Hawson’s case, Clayton, 34 ; 18 Vin. Abr., 504, tit. Rent [A a], pl. 11 ; Bushell v. Lechmore, 1 Ld. Ray. 369), and uniformly adhered to since, tbat a mere entry and trespass upon tbe land by tbe landlord is not sucb a deprivation, and will not suspend or discharge tbe payment of rent. In the first of these cases (Hawson’s case), tbe court held tbat tbe breaking of a partition wall by tbe landlord will not extinguish tbe rent, for there • must be a continuance of tbe possession and-a putting out of tbe lessee. In Vermilyea v. Austin (2 E. D. Smith, 203), I bad occasion to point out tbat Senator Spencer bad mistaken tbe reason of tbe rule, tbat eviction from part, by tbe act of tbe landlord, shall suspend tbe rent of tbe whole. It is not founded upon tbe diminution of the consideration of tbe contract, or tbe injury to tbe beneficial enjoyment; and this mistake led to the erroneous conclusion be arrived at.
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Daly, J. —
Tbe matters set up by tbe answer are relied upon, either as a bar to tbe action, or as establishing a clai.m for damages against tbe plaintiff, which may be set up in tbis action by way of counter-claim.
It is not denied by tbe answer — indeed, tbe answer admits— that tbe defendant continued to occupy during tbe whole period for which rent is claimed, and tbe first question presented is, whether a tenant, who thus continues in tbe occupation of tbe whole of tbe premises demised, is released from tbe payment of rent because tbe landlord has committed acts which have diminished tbe beneficial enjoyment of tbe premises during tbe period for which rent is sought to be recovered.
[325]*325To occasion a suspension or extinguishment of rent, there must be an eviction of the tenant, and, as this was understood before the decision of Dyett v. Pendleton (8 Cow. 727), it meant that the tenant must be put out of possession either of part or of the whole of the premises demised. Co. Lit. 148, b ; Dorrel v. Andrews, Hob. 190, a ; Reynolds v. Buckle, ibid. 326, a ; Hodgson v. Robson, Vent. 276 ; Pollexf. 142 ; Trumbull v. Bullock, Styles, 446 ; Salmon v. Smith, 1 Wm. Saund. 204, and note 2 ; Hunt v. Cope, Cowp. 243. Thus the form of the plea, as given in Saunders, was, “ and expelled, and removed him, the said Samuel, from his possession thereof, and hept out him, the said Samuel, from his possession thereof.” This was the form of the plea in Dyett v. Pendleton (4 Cow. 584) ; and as some misconception has pr^j| vailed, as to what was actually determined in the ultimate disposition of that case by the Court of Errors, it may be well to review that decision.
To maintain the plea that the plaintiff had expelled him from the possession, the defendant offered to prove, upon the trial, that the plaintiff introduced, into the part of the house' which he occupied, lewd women and prostitutes at various times, keeping them all night for the purpose of prostitution; that he was in the habit of introducing other men, who, with himself, kept company with the women, and who together kept up such noise and disturbance throughout the night, using obscene and indecent language, so as to disturb the rest of persons sleeping in the part of the house demised to the defendant, in consequence of which the defendant was compelled to leave the house before the rent became due for which the action was brought.' It was held by the Supreme Court (4 Cow. 584), that the evidence was properly excluded; that there could be no eviction without an actual entry and expulsion; that the matter complained of simply amounted to a nuisance, which the defendant could have abated by applying to the police; that he was under no necessity, physical or moral, to abandon the premises; and that his abandonment was voluntary, and was no answer to the covenant for the payment of rent.
[326]*326The decision of the Supreme Court was reversed by the Court of Errors (8 Cow. 729), and that judgment of reversal determined merely that proof of an actual entry was not essential to establish an eviction, but that, without an actual entry upon the premises, the landlord might be guilty of acts which, by compelling the tenant to quit the premises, would amount to an eviction, and that, upon the evidence excluded at the trial, the jury could have found that the defendant was justified in quitting the premises, and having done so, that he was released thereafter from any further liability under the covenant in the lease for the payment of rent.
This is all that I understand to have been decided by that case, though it has been supposed to have gone much further. Thus Savage, C. J., in Lewis v. Payne (4 Wend. 428), said, “ In Dyett v Pendleton, it seems to have been held that any obstruction, by the landlord, to the beneficial enjoyment of the demised premises, or a diminution of the consideration of the contract, by the act of the landlord,' amounts to a constructive eviction.” The only foundation for this opinion is to be found in one of the reasons assigned by Senator Spencer, who delivered an opinion for reversal, to show that actual entry was not essential to an eviction.
In referring to the rule, that a tenant, who has been evicted from part of the premises by the act of the landlord, is not obliged to pay rent for the part he retains until he is restored to the whole possession, Senator Spencer says, “As to the part retained, this is deemed such an injury to its beneficial enjoyment, such a diminution' of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent. Here, then, is a case where actual entry and physical eviction are not necessary to exonerate the tenant from the payment of rent; and if the principle be correct as applied to a part of the premises, why should hot the same principle equally apply to the whole property demised, where there has been an obstruction to its beneficial enjoyment, and a diminution of the consideration of the contract, by the acts of the landlord, although those acts do not amount to a physical eviction.”
[327]*327But the ground bere taken, tbat any obstruction by tbe landlord to tbe beneficial enjoyment of -tbe premises demised, or diminution of tbe consideration of tbe contract, amounts to an eviction, was not essential to tbe decision of Dyett v. Pendleton. It is not, and never was tbe law, nor is tbe case an authority for any sucb proposition or principle. If any obstruction to tbe beneficial enjoyment, or diminution of the consideration of tbe contract, will exonerate tbe tenant from tbe payment of rent, then any act of trespass on tbe part of tbe landlord will have tbat effect; and it is well settled tbat something more than á mere trespass is essential to an eviction, however much tbe act of trespass, or successive acts of trespass, may obstruct tbe tenant in tbe beneficial enjoyment, or diminish tbe consideration of-feft contract.
“ Tbe title to rent,” says Bacon (6 Bac. Abr., Rent, L. 44), “is founded upon this, tbat tbe land demised is enjoyed by tbe tenant during tbe term included in tbe contract, for tbe tenant can make no return for a thing be has not. If, therefore, the tenant be deprived of tbe thing letten, tbe obligation to pay tbe rent ceases.” But it was held before Bacon’s time (Hawson’s case, Clayton, 34 ; 18 Vin. Abr., 504, tit. Rent [A a], pl. 11 ; Bushell v. Lechmore, 1 Ld. Ray. 369), and uniformly adhered to since, tbat a mere entry and trespass upon tbe land by tbe landlord is not sucb a deprivation, and will not suspend or discharge tbe payment of rent. In the first of these cases (Hawson’s case), tbe court held tbat tbe breaking of a partition wall by tbe landlord will not extinguish tbe rent, for there • must be a continuance of tbe possession and-a putting out of tbe lessee. In Vermilyea v. Austin (2 E. D. Smith, 203), I bad occasion to point out tbat Senator Spencer bad mistaken tbe reason of tbe rule, tbat eviction from part, by tbe act of tbe landlord, shall suspend tbe rent of tbe whole. It is not founded upon tbe diminution of the consideration of tbe contract, or tbe injury to tbe beneficial enjoyment; and this mistake led to the erroneous conclusion be arrived at. This rule, in respect to tbe soundness of which there was great contrariety of opinion before it was definitely settled and recog[328]*328nized (6 Bac. Abr. M 2), was founded upon tbe policy of tbe feudal law, by wbicb tbe landlord was bound to protect and defend bis tenant; and sucb being tbe obligation springing out of tbe relation, tbe landlord, wbo bad wrongfully dispossessed tbe tenant of part, would not be allowed to apportion bis own wrong, and recover rentero rata for tbe residue of tbe land, but tbe rent was suspended until the landlord fulfilled bis obligation, and restored tbe tenant to the possession of the whole. Co. Lit. 1, 486 ; Hodgkin v. Robson, Vent. 276 ; Pollexf. 142 ; Brooke Abr. tit. Extinguishment, 48 ; Roll. Abr. 938 ; 6 Bac. Abr. Rent, M 1, p. 49.
In Dyett v. Pendleton, tbe tenant abandoned tbe premises before tbe rent became payable, and all that was or can be said to ^bedecided by tbe case was, that to constitute an eviction it was not necessary that tbe landlord should actually enter and expel tbe tenant from tbe possession, but that be might be guilty of acts wbicb, by compelling tbe tenant to abandon tbe premises, would have tbe same effect as if there bad been an actual entry and a physical expulsion. In other words, that there might be constructive as well as mere physical eviction, wbicb was very well illustrated by Senator Spencer, by supposing that tbe landlord in that case bad converted tbe portion of tbe bouse wbicb be occupied into a small-pox or yellow-fever hospital, or bad made a deposit of gunpowder under tbe tenant, in wbicb case tbe abandonment of tbe premises by tbe tenant might become a matter of necessity, and bis expulsion accomplished as effectually as if-the landlord had entered and turned him out by force. “Whether,” says Crary, tbe other senator, wbo delivered an opinion in favor of reversing tbe judgment of tbe Supreme Court, “ it was an unnecessary and voluntary abandonment of tbe premises on tbe part of the tenant, or compelled by tbe moral turpitude of tbe landlord,- is tbe only question material to be considered.” In Jackson v. Eddy and others (12 Miss. 209), a case in many respects resembling tbe present one, and to wbicb I shall have further occasion to refer, it became essential to ascertain exactly what was determined by Dyett v. Pendleton, and tbe principle or rule established by that case is thus stated: [329]*329“ Any act of tbe lessor, which defeats the enjoyment of the property by the lessee, is a good bar to the demand for rent, provided the lessee abandon the premises in consequence of such wrongful act of the lessor.” t
The Court of Errors, in establishing this doctrine of constructive eviction, made no change in-the law. They overturned no principle or rule established by previous decisions, but merely extended the application of an acknowledged principle, in a case which justified the extent to which they carried it. This was the view taken of the case by Nelson, J., in Ogilvie v. Hull (5 Hill, 54), and by Bronson, J., in Gilhooly v. Washington (4 Com. 219). It was entirely consistent with the existing law, to hold that a landlord, who compelled a tenant to abandon the premi$§^ demised, by acts which rendered the further occupation of them impossible, inconvenient, or useless, evicted the tenant as fully, to all intents and purposes, as if he had gone upon the premises and ejected him from the possession by force.
In Cohen v. Dupont (1 Sand. S. C. 260), the tenant left in consequence of a series of petty annoyances on the part of the landlord, which seriously injured the tenant’s business, and it was held to be an eviction. In Jackson v. Eddy, supra, the tenant occupied the store and cellar of a building, the upper part of which was occupied by the landlord as a grocery store, and the dripping from the salt, tar, &c., in the loft, or floor occupied by the landlord, passed through the floor into the store occupied by the tenant, upon his sugar hogsheads, brooms, &c. The tenant complained, and the landlord tried to prevent further injury by sprinkling sawdust on the floor above, which only stopped the leakage temporarily. The tenant left before the commencement of the last quarter, and sent the key to the landlord, who refused to receive it. The action was for the last quarter’s rent, and it was held that the tenant having abandoned the premises before the beginning of the quarter for which rent was claimed, in consequence of a disturbance of the beneficial enjoyment by the act of the landlord, the action could not be maintained, and the law upon the subject is thus succinctly stated by the court: “ The [330]*330consideration of tbe lessee’s undertaking to pay rent is tbe quiet, peaceable, and indisputable possession of tbe premises leased, and is, in its nature, a condition precedent to tbe payment of rent. If tbe lessor, by any wrongful act, disturbs that possession, which be should protect and defend, be thereby forfeits bis right, and tbe lessee may abandon tbe possession of tbe premises leased, and thereby exonerate himself from liability to pay rent.”
In all these cases the tenant abandoned the premises, and thereby discharged himself from all further liability for rent, but no case has ever gone the length of holding that a tenant, disturbed in the beneficial enjoyment by the act of the landlord, may continue in the possession of the whole premises, and be exempt jjfj^rn the payment of rent. There must be an eviction of the whole or of some part, and there can be no eviction, if the tenant continues in the possession of the whole, however much he may be disturbed in the beneficial enjoyment. For that disturbance, as has been already shown, the landlord is liable as a trespasser, but it does not put an end to the contract. Every eviction includes an ouster' either of the whole or of some part. 6 Bac. Abr. by Bayley, note 44 ; 1 Lord Ray. 369. It must amount to a deprivation of possession. The possession must be given up by the tenant in consequence of the acts of the landlord, and they must be acts which warrant and justify the tenant in so doing, or the landlord must have taken the possession forcibly from the tenant. In short, there must be a change of possession. It must be out of the tenant, and in the landlord.
This is manifest upon referring to the early cases. In Cibel v Hills (1 Leon. 110 ; 18 Vin. Abr. Rent, 1, pl. 2, p. 513), it was held that the possession must be in the landlord to suspend the rent. In Reynolds v. Buckle (Hob. 326, a), the defendant pleaded that before rent due “ the plaintiff did enter upon him, but did not say that he did expel him or hold him out,” and it is said, in the report of the case, that, as a plea in bar, it was insufficient. In Jones v. Boddinger (Comb. 380), it is said, expulsion makes the first part of the bar, and holding out the rest. In Arnold v. Foot (3 Keb. 453), the plea was declared bad, because it is not [331]*331said expulit or amovit, nor that the plaintiff continued in possession, as it ought to be, being pleaded by way of suspension, and in Hunt v. Cope (Cowp. 243), Aston, Justice, said: “ All tbe cases in tbe books suppose tbe lessee to be put out of possession; therefore, merely saying that' be is deprived of tbe enjoyment of tbe premises is not sufficient,” and tbe plea was held no bar. Tbe distinction which runs through all tbe early cases, that it is tbe deprivation of tbe possession of tbe whole, or of some part, by tbe wrongful resumption of it, on tbe part of tbe landlord, which works the suspension or extinguishment of rent, has been recognized and acted upon in several American cases. Briggs v. Hall, 4 Leigh, 485 ; Jackson v. Eddy, supra ; Bennett v. Bittle, 4 Rawle, 339 ; Cram v. Dresser, 2 Sandf. S. C. 120 ; Wilson v. Smith, 5 Yerme, 399. In this last case, it is said, an interference by the lana-' lord, unless tbe tenant be wholly evicted and expelled from the possession, is not a discharge from tbe payment of the stipulated compensation; but makes the enteren, upon bis possession, a trespasser liable to make satisfaction for tbe damages in the appropriate action,” and it was further remarked, that the relation of tenant continues as long as tbe tenant continues to hold the possession. Sometimes tbe distinction between a mere trespass and an eviction is very nice ; as in Briggs v. Hall, supra, where the landlord entered upon a farm he had demised to the tenant, and mowed the meadow land. This was held to amount to an eviction, because the principal enjoyment and possession of a meadow land is the taking and using the hay, and tbe man who docs this is to every rational purpose the possessor. This was an extreme case for declaring that the possession of part of the premises demised was in the landlord, and not in the tenant, but it shows that this change of possession must take place, or there is no eviction. In tbe case before us tbe defendant remained in possession, until the full end of the term, for which rent is claimed. He has not, therefore, been evicted, and his answer is no bar to tbe action for rent. The acts of which he complains would entitle him to maintain an action against the plaintiff, equivalent to what was formerly denominated an action on the case, and it [332]*332only remains to consider whether this cause of áction can be set up in this suit, by way of counter-'claim.
He claims that he sustained damage to the amount of two hundred and fifty dollars, in the hindrances, obstructions, delay and difficulties occasioned to, in, and about the prosecution of his business, and further sets up, that during the quarter in question large quantities of water were poured and thrown out of the rear windows of the plaintiff, wantonly, maliciously and negligently, by the plaintiff and his servant, so as to run into and upon the premises leased to the defendant, whereby his property there deposited, consisting of fruits and other articles, was injured and destroyed to the amount of one hundred and fifty dollars. Is cause of action arising out of the contract, which constitutes the foundation of the plaintiff’s claim in this action, or is it connected with the subject of the action within the meaning of the 150th section of the Code ?
Before the last amendment of this section, we held, in Levy v. Bend (1 E. D. Smith, 169), that damages for a tortious intrusion upon the demised premises, by the landlord as a wilful trespasser, not constituting a breach of the contract declared on, could not be set up, by way of recoupment, in an action brought to recover the rent, and after the section was amended in its present form, we held in Drake v. Cockcroft (4 E. D. Smith, 34), that in an action, by a landlord to recover rent, the tenant could not set up, as a counter-claim, a mere trespass upon the demised premises, and destruction of personal property committed by the landlord. In that action the answer set up that the defendant occupied a stable which constituted a part of the premises demised, and that the plaintiff, during the defendant’s temporary absence, broke open the stable, and wilfully took and removed the personal property of the defendant therein, which was injured, destroyed and lost to the defendant. We held, that as a cause of action, this was wholly independent of the contract for the payment ol rent. That the trespass for which damages were claimed could not be regarded as connected with the contract nor with the subject of the action, which was money due upon a contract of hir-[333]*333lag ;• but it was admitted by Judge Woodruff, that an interference with the possession, an eviction, total or partial, or an unlawful injury to the premises in violation of the contract of letting, might, under a liberal construction of the Code, constitute a counter-claim.
The answer in this case shows a disturbance of the beneficial enjoyment, but no interference with the possession. Any trespass upon the premises demised is a disturbance of the beneficial enjoyment, but an interference with the possession'is either, an entry under color of right or assumption of title, or an absolute deprivation of the possession in whole or in part. The answer does not show an eviction, total or partial, or any unlawful injury to the premises in violation of the contract. There, is implied in the contract, being a demise or letting for a yeaS^a covenant for quiet enjoyment (The Mayor of N. Y. v. Mabie, 3 Kern. 151), but a covenant for quiet enjoyment, whether express or implied, relates only to title, and not to the undisturbed enjoyment of the premises demised where there has been no eviction, or entry under assumption of title. Howard v. Doolittle, 3 Duer, 474 ; The Mayor of N. Y. v. Mabie, supra ; Lloyd v. Tomkins, 1 T. R. 671 ; Platt on Covenants, 312 to 320. Nothing of this kind appears by the answer. It sets up a trespass not made under an assumption of title, nor resulting in an eviction, and, therefore, no breach of the contract of hiring. It is not, then, a cause of action arising out of the contract, and as the contract is here the subject of the action, it cannot be said to be connected with the subject of the action.
The judgment of the special term should be reversed, and judgment given for the plaintiff on the demurrer.