P. Potter, P. J.
The defendant continued to occupy the whole of the demised premises during the term of the lease. Unless the defendant was evicted of the demised premises or some part thereof, he is liable to the payment of rent so long as he remains in possession under his lease. The defendant has a remedy to recover damages for the breach of any express or implied covenant by an action for such breach (Etheridge v. Osborn, 12 Wend., 529, 531, 532); though, perhaps, under the Code, where the demands of both parties spring out of the same contract or transaction, the defendant may recoup, even though the damages are unliquidated. But the damages in this case, claimed to be recouped, do not arise out of the same contract, but from a tortious act, as claimed, of the plaintiffs, in depriving them of access to a portion of the premises, and from the proper enjoyment thereof. These acts complained of are entirely independent of any covenant in the lease and are only consequential, and resulting from acts not committed upon the demised premises, the whole of which the defendant continued to occupy for the whole term. These acts are no defence to an action for rent. (Edgerton v. Page, 20 N. Y., 284.)
Neither the railroad in question, nor the streets upon which it was constructed, were any part of the demised premises. The right to use the railroad was enjoyed by the defendant before the date of the lease, and was entirely disconnected with the covenants in the plaintiff’s lease, if any there were. The plaintiff assumed therein no right, control or authority over these streets; he received no consideration on account of them or their use, but, on the contrary, the right to use the said streets by the defendant had been granted to them before that time by the common council of the city of Albany, to whom they had made application for that purpose, and it was granted to them subject to the compliance by the defendant with certain conditions therein specified not only, but in contemplation of law they consented to accept of and enjoy them, subject to the powers of the said common council, under the twenty-ninth section of their charter (Laws of [478]*4781842, chap. 275), “ to regulate, keep in repair and alter the streets” of said city.
I think, therefore}' that the learned referee was right in holding that the parties to the said lease contracted therein with reference to the possibility of an alteration in the grade of Swan street by the authorities of said city, and that the defendant, in taking said lease, impliedly assumed the risk of the happening of such contingency ; and I think the referee might have added, that this risk was assumed by the defendant at the time of locating their road in said street, and prior to the date of the said contract of lease made with the plaintiff, and was no part of their contract with him. This case is clearly distinguished from Blair v. Clayton (18 N. Y., 529). In that case there were clear express covenants, on the part of the lessor, that the lessee should forever have and possess the right to use the amount of water specified, for the machinery described, with a positive covenant from the grantors for quiet enjoyment, without any hindrance, disturbance or molestation, cfcc., of appurtenances, a part of the thing demised.
In the case at bar, there were no words of grant, title or possession, or any covenant whatever on the part of the plaintiff as lessor, as will be seen by reference to the lease. And if, since the Revised Statutes (vol. 1, p. 738, §§ 160 [140]), covenants can be inplied, as at common law, in a lease, as is claimed (and as seems to be stated by Eabl, J., in Mack v. Patchen, 42 N. Y. R., 171), it will not be implied to extend to the enjoyment of anything beyond the limits of the demised premises; nor, as an implication of law, to override a prior implication of law to the contrary; nor, also, to the implication of a knowledge of the fact, on the part of the defendant, that he located the track of the said railroad, subject to such alterations as the common council of Albany, in their discretion, should make in the grade of their streets. And especially must this be so, where the claimed eviction is occasioned through no fault of the lessor. As the case of Mach v. Patchen is relied on by the defendant with confi. [479]*479dence, as controlling in this case, it is worthy of remark that, though it is said in that case that there was no express covenant of quiet enjoyment, it does not appear that there may not have been other covenants therein, which were equivalent to it and included it. The lease itself, in that case, does not appear, nor does it appear what other covenants were contained in it. The word coneessi ór demisi, in a lease, are words that imply a covenant for quiet enjoyment. (Spencer’s Case, 5 Coke; 16 Shep. Touch., 160.) So from the -word grant, in a lease or an assignment, a like covenant may be implied. (Baker v. Harris, 9 Ad. & Ellis, 535.) So a covenant to warrant and defend the title. (4 Kent Com., 472.) But in the absence of all covenants, since the Revised Statutes above cited, I do not think the case of Mack v. Patchen intends to hold that in all leases, without regard to form and language, there is an implied, covenant for quiet enjoyment. It was not so even before the statute. This is not held in Mack v. Patchen.
In grading the street in front of the demised premises, the act was the act of the common council by their agent. The common council had the power to direct the act to be done. They did direct it. It was their act, equally the same, whether the plaintiff or another acted as the agent or servant in executing the direction. The law adds no individual responsibility upon the agent, provided he performs the act within the sphere of the duty of an agent or servant of the corporation. The law allowed the plaintiff to be such agent.
If the act of the plaintiff was a trespass, it was not directly committed upon the demised premises; even an individual personal act of the lessor, amounting to a mere trespass, not interfering with the substantial enjoyment of the demised premises by the lessee, is not equivalent to an eviction. (31 N. Y., 514.) There was neither actual nor constructive expulsion of the defendant from any portion of the premises.
But it is claimed that the plaintiff was liable to the defendant for the injury sustained by the latter, resulting from the [480]*480act of the former as found by the referee in the following fact, in addition to those in the original report, viz.:
1st. That the work of excavating and grading Swan street in front of the premises in question was commenced in September, 1868, and was not completed until about the middle of June, 1869.
2d. That the said work might have been done in from ten to thirty days.
3d. That if the plaintiff had not elected to do the work himself, and the same had been done under the direction of the street superintendent, it would not have been commenced until the spring of 1869, and the defendant would have continued to have the use of the whole of the premises in question until that time.
. 4th. That by reason of plaintiff’s electing and undertaking to do the work himself the defendant was deprived of the use of its car-house from September, 1868, until the spring of 1869.
1.
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P. Potter, P. J.
The defendant continued to occupy the whole of the demised premises during the term of the lease. Unless the defendant was evicted of the demised premises or some part thereof, he is liable to the payment of rent so long as he remains in possession under his lease. The defendant has a remedy to recover damages for the breach of any express or implied covenant by an action for such breach (Etheridge v. Osborn, 12 Wend., 529, 531, 532); though, perhaps, under the Code, where the demands of both parties spring out of the same contract or transaction, the defendant may recoup, even though the damages are unliquidated. But the damages in this case, claimed to be recouped, do not arise out of the same contract, but from a tortious act, as claimed, of the plaintiffs, in depriving them of access to a portion of the premises, and from the proper enjoyment thereof. These acts complained of are entirely independent of any covenant in the lease and are only consequential, and resulting from acts not committed upon the demised premises, the whole of which the defendant continued to occupy for the whole term. These acts are no defence to an action for rent. (Edgerton v. Page, 20 N. Y., 284.)
Neither the railroad in question, nor the streets upon which it was constructed, were any part of the demised premises. The right to use the railroad was enjoyed by the defendant before the date of the lease, and was entirely disconnected with the covenants in the plaintiff’s lease, if any there were. The plaintiff assumed therein no right, control or authority over these streets; he received no consideration on account of them or their use, but, on the contrary, the right to use the said streets by the defendant had been granted to them before that time by the common council of the city of Albany, to whom they had made application for that purpose, and it was granted to them subject to the compliance by the defendant with certain conditions therein specified not only, but in contemplation of law they consented to accept of and enjoy them, subject to the powers of the said common council, under the twenty-ninth section of their charter (Laws of [478]*4781842, chap. 275), “ to regulate, keep in repair and alter the streets” of said city.
I think, therefore}' that the learned referee was right in holding that the parties to the said lease contracted therein with reference to the possibility of an alteration in the grade of Swan street by the authorities of said city, and that the defendant, in taking said lease, impliedly assumed the risk of the happening of such contingency ; and I think the referee might have added, that this risk was assumed by the defendant at the time of locating their road in said street, and prior to the date of the said contract of lease made with the plaintiff, and was no part of their contract with him. This case is clearly distinguished from Blair v. Clayton (18 N. Y., 529). In that case there were clear express covenants, on the part of the lessor, that the lessee should forever have and possess the right to use the amount of water specified, for the machinery described, with a positive covenant from the grantors for quiet enjoyment, without any hindrance, disturbance or molestation, cfcc., of appurtenances, a part of the thing demised.
In the case at bar, there were no words of grant, title or possession, or any covenant whatever on the part of the plaintiff as lessor, as will be seen by reference to the lease. And if, since the Revised Statutes (vol. 1, p. 738, §§ 160 [140]), covenants can be inplied, as at common law, in a lease, as is claimed (and as seems to be stated by Eabl, J., in Mack v. Patchen, 42 N. Y. R., 171), it will not be implied to extend to the enjoyment of anything beyond the limits of the demised premises; nor, as an implication of law, to override a prior implication of law to the contrary; nor, also, to the implication of a knowledge of the fact, on the part of the defendant, that he located the track of the said railroad, subject to such alterations as the common council of Albany, in their discretion, should make in the grade of their streets. And especially must this be so, where the claimed eviction is occasioned through no fault of the lessor. As the case of Mach v. Patchen is relied on by the defendant with confi. [479]*479dence, as controlling in this case, it is worthy of remark that, though it is said in that case that there was no express covenant of quiet enjoyment, it does not appear that there may not have been other covenants therein, which were equivalent to it and included it. The lease itself, in that case, does not appear, nor does it appear what other covenants were contained in it. The word coneessi ór demisi, in a lease, are words that imply a covenant for quiet enjoyment. (Spencer’s Case, 5 Coke; 16 Shep. Touch., 160.) So from the -word grant, in a lease or an assignment, a like covenant may be implied. (Baker v. Harris, 9 Ad. & Ellis, 535.) So a covenant to warrant and defend the title. (4 Kent Com., 472.) But in the absence of all covenants, since the Revised Statutes above cited, I do not think the case of Mack v. Patchen intends to hold that in all leases, without regard to form and language, there is an implied, covenant for quiet enjoyment. It was not so even before the statute. This is not held in Mack v. Patchen.
In grading the street in front of the demised premises, the act was the act of the common council by their agent. The common council had the power to direct the act to be done. They did direct it. It was their act, equally the same, whether the plaintiff or another acted as the agent or servant in executing the direction. The law adds no individual responsibility upon the agent, provided he performs the act within the sphere of the duty of an agent or servant of the corporation. The law allowed the plaintiff to be such agent.
If the act of the plaintiff was a trespass, it was not directly committed upon the demised premises; even an individual personal act of the lessor, amounting to a mere trespass, not interfering with the substantial enjoyment of the demised premises by the lessee, is not equivalent to an eviction. (31 N. Y., 514.) There was neither actual nor constructive expulsion of the defendant from any portion of the premises.
But it is claimed that the plaintiff was liable to the defendant for the injury sustained by the latter, resulting from the [480]*480act of the former as found by the referee in the following fact, in addition to those in the original report, viz.:
1st. That the work of excavating and grading Swan street in front of the premises in question was commenced in September, 1868, and was not completed until about the middle of June, 1869.
2d. That the said work might have been done in from ten to thirty days.
3d. That if the plaintiff had not elected to do the work himself, and the same had been done under the direction of the street superintendent, it would not have been commenced until the spring of 1869, and the defendant would have continued to have the use of the whole of the premises in question until that time.
. 4th. That by reason of plaintiff’s electing and undertaking to do the work himself the defendant was deprived of the use of its car-house from September, 1868, until the spring of 1869.
1. This as a defence was not set up in the answer, and is not therefore a counter-claim.
2. The act of the plaintiff was not proved or found to be illegal.
. 3. That the act of the plaintiff being the act of the corporation, and not being either a trespass or such a willful act as to make the plaintiff as a servant or agent individually responsible, the injury, if any, could not be either a counterclaim or recouped in action.
4. The time occupied in performing the act complained of was a question directly between the plaintiff and the corporation of the city, and the injury to the defendant, being consequential, cannot be an offset, counter-claim, or subject of recoupment or defence to an action for rent.
The payment of the taxes and water rates of the demised premises were a part of the rent due to the plaintiff by the terms of the lease, and which the defendant covenanted to pay; which it omitted to pay; which it was notified and requested to pay; wdiich the plaintiff personally and the [481]*481plaintiff’s property so demised was legally liable to pay; and after a warrant pursuant to law had been issued for the collection thereof, and the defendant requested to make payment, refused to pay. Thereupon the plaintiff paid the same, he being personally liable for the payment thereof. (Act of 1850, chap. 86, § 37.) These taxes so paid is the cause of action and the basis of recovery, the amount of which is not controverted,
I think it is clear that a party who is personally liable to pay such taxes, or whose property is liable to pay them, whose tenant is liable by covenant to pay them, and who omits or refuses to pay, upon proper demand may pay, and bring his action against the defaulting tenant and recover the same. (lageman v. Kloppenburg, 2 E. D. Smith R., 126.) If I am right in the views above expressed, the judgment should be affirmed, with costs.
Judgment affirmed.