Vann, J.
— The judgment of the court of common pleas-in Bowne agt. The Mayor, &c., was not pleaded by any defendant in this action, and hence is not available as a bar or an estoppel (Krekeler agt. Titter, 62 N. Y., 372; Dalrymple agt. Hunt, 5 Hun, 111). If, however, it had been formally pleaded, it would have been of no avail, because the defendants in that case, by moving and obtaining a non-suit as to the plaintiff’s cause of action,, in effect submitted to a nonsuit as to their own cause of action, pleaded as a counter-claim. There was a virtual discontinuance as to their claim against the plaintiffs, which was not submitted to or [164]*164passed upon by the court. As a plaintiff may take a voluntary nonsuit, so a defendant may decline to submit a counterclaim for adjudication, and in either case a subsequent action may be brought upon the claim (Jones agt. Underwood, 35 Barb., 211). A counter-claim that the party is bound to present and litigate in a particular suit or lose the benefit of it is an exception to the general rule and has no application to this action.
The decision in Bowne agt. The Mayor, &c., although not binding, as an estoppel, would be valuable as a precedent if the question there decided arose in this case. That action was brought to recover damages for an alleged violation by the mayor, &c., of their agreement, termed a lease, by taking possession of the pier and depriving the lessee of any further use thereof. The court held that the action would not lie, and dismissed the complaint without, so far as appears, stating the ground of its action. The only point necessarily decided, therefore, was that the mayor, &c., had the right, under said agreement, to take possession, which is the theory upon which the plaintiff in this action claims a recovery.
By force of the agreement, and in.the manner therein provided, the plaintiffs had the right to take possession of the whole or any part of the premises in question. Upon service of the notice on the 9th of October, 1873, the right to the entire premises vested in them, for all purposes, the same as if no agreement in relation thereto had been made with the defendants. If a part only of the premises had been taken the defendants would, thereafter, have been liable only for an amount of .rent proportionate to the part of the premises not taken. As the whole pier was taken, the entire rent ceased from that date, for the enjoyment of the premises is an implied condition on which the tenant is bound to pay rent. The rent already earned, though not payable until Bovember first, has not been paid. There is no provision in the agreement that rent earned but not due when possession is taken by the city shall not become due, or that it shall not be paid. [165]*165The parties provided by their' contract that an “ equitable • deduction for the future ” should be made from the rate of rent reserved, but did not provide for any deduction from the rent already earned.
It is well settled that an eviction of a tenant by his landlord from the whole or even from a part of the demised premises, suspends the rent until the possession is restored (Christopher agt. Austin, 11 N. Y., 216; Pendleton agt. Dyett, 4 Cow., 581). But the eviction, in order to suspend the payment of rent, must be an unlawful eviction, where, by the wrongful act of the landlord, the tenant is deprived of possession (Id.; Lewis agt. Payn, 4 Wend., 423; Taylor's Landlord and Tenant, sec. 378). In such a case the tenant may recover the difference between the value of his lease and the stipulated rent (Chatterton agt. Fox, 5 Duer, 64). The recovery of part of the premises by title paramount to that of the landlord, termination of the tenancy by the act of God or the law, or by the right reserved, voluntary surrender, &e., are exceptions to the rule, for in such cases it is held that as the landlord is not in fault he is entitled to recover a proportionate part of the rent (Lawrence agt. French, 25 Wend., 443; Carter agt. Burr, 39 Barb., 59).
In the case under consideration the eviction was not unlawful. The landlord did nothing but what the tenant agreed he might do. The obligation to pay the rent depends upon the enjoyment of the premises or upon the right to enjoy them, but if the tenant by his own contract consents that the landlord may terminate the lease or take possession at will, it seems equitable that he should pay rent to the extent and as long as he occupies. As it was said in Walker's case (2 Coke, 59, 61, part 3, fol. 22): “ If a man leases three acres, rendering rent, and the lessor ousts the lessée of one acre, he shall have an action of debt for no part, but if the lessor recovers , part in an action of waste or enters into part for a forfeiture or by surrender or by special condition for entry into part, or if part of the land be evicted by title paramount, in all these [166]*166cases the rent reserved of the lease for years, which is a rent service, shall be apportioned.” This case seems to have been generally followed and approved, and it may be regarded as settled that where a tenant is evicted without fault on the part of the landlord, the rent will be apportioned. Such apportionment, however, depends upon the extent of the occupation. In this case an apportionment is sought that is based upon the time of occupation. Without any satisfactory reason for the distinction, the rule in such cases seems to be different. “ If rent is payable quarterly, and the tenant be turned out before the end of the quarter thé landlord loses the rent of the current quarter, for rent will not be apportioned in respect to time (Taylor's Landlord and Tenant, 285, sec. 387; Clun’s case, 10 Coke, 128; Zule agt. Zule, 24 Wend., 76).
In Clun's case there was a lease for fifty years, if the lessor should live so long, and the rent was payable quarterly. The lessor died at about the end of one quarter, and it was held that no action would lie to recover the rent, because the rent “ is to be, raised out of the profits of the land and is not due until the profits are taken by the lessee'; and that is the reason that if the land is evicted, or if the lease determines before the legal time of payment, no rent shall be paid, for there shall never be an apportionment in respect of part of the time, as there shall be upon an eviction of part of the land.”
In Zule agt. Zule the term was five years and the rent payable semi-annually, with a reservation by the lessor of the right to sell at any time. The lease was terminated by a sale of the premises about three months before the half-yearly payment became due, and it was held that the lessor could not claim an apportionment of rent, or recover the portion that had accrued since the last rent day, in the absence of a provision in the lease to that effect.
Judge Cowen, speaking for the court., said: “Even where the tenancy was determined by the act of God, as where the lessor was tenant for life, and died intermediate the rent days, the rent could not be apportioned, hence the statutes (11 Geo. [167]*1672, chap. 19, and 1 R. S., 738, sec. 22).
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Vann, J.
— The judgment of the court of common pleas-in Bowne agt. The Mayor, &c., was not pleaded by any defendant in this action, and hence is not available as a bar or an estoppel (Krekeler agt. Titter, 62 N. Y., 372; Dalrymple agt. Hunt, 5 Hun, 111). If, however, it had been formally pleaded, it would have been of no avail, because the defendants in that case, by moving and obtaining a non-suit as to the plaintiff’s cause of action,, in effect submitted to a nonsuit as to their own cause of action, pleaded as a counter-claim. There was a virtual discontinuance as to their claim against the plaintiffs, which was not submitted to or [164]*164passed upon by the court. As a plaintiff may take a voluntary nonsuit, so a defendant may decline to submit a counterclaim for adjudication, and in either case a subsequent action may be brought upon the claim (Jones agt. Underwood, 35 Barb., 211). A counter-claim that the party is bound to present and litigate in a particular suit or lose the benefit of it is an exception to the general rule and has no application to this action.
The decision in Bowne agt. The Mayor, &c., although not binding, as an estoppel, would be valuable as a precedent if the question there decided arose in this case. That action was brought to recover damages for an alleged violation by the mayor, &c., of their agreement, termed a lease, by taking possession of the pier and depriving the lessee of any further use thereof. The court held that the action would not lie, and dismissed the complaint without, so far as appears, stating the ground of its action. The only point necessarily decided, therefore, was that the mayor, &c., had the right, under said agreement, to take possession, which is the theory upon which the plaintiff in this action claims a recovery.
By force of the agreement, and in.the manner therein provided, the plaintiffs had the right to take possession of the whole or any part of the premises in question. Upon service of the notice on the 9th of October, 1873, the right to the entire premises vested in them, for all purposes, the same as if no agreement in relation thereto had been made with the defendants. If a part only of the premises had been taken the defendants would, thereafter, have been liable only for an amount of .rent proportionate to the part of the premises not taken. As the whole pier was taken, the entire rent ceased from that date, for the enjoyment of the premises is an implied condition on which the tenant is bound to pay rent. The rent already earned, though not payable until Bovember first, has not been paid. There is no provision in the agreement that rent earned but not due when possession is taken by the city shall not become due, or that it shall not be paid. [165]*165The parties provided by their' contract that an “ equitable • deduction for the future ” should be made from the rate of rent reserved, but did not provide for any deduction from the rent already earned.
It is well settled that an eviction of a tenant by his landlord from the whole or even from a part of the demised premises, suspends the rent until the possession is restored (Christopher agt. Austin, 11 N. Y., 216; Pendleton agt. Dyett, 4 Cow., 581). But the eviction, in order to suspend the payment of rent, must be an unlawful eviction, where, by the wrongful act of the landlord, the tenant is deprived of possession (Id.; Lewis agt. Payn, 4 Wend., 423; Taylor's Landlord and Tenant, sec. 378). In such a case the tenant may recover the difference between the value of his lease and the stipulated rent (Chatterton agt. Fox, 5 Duer, 64). The recovery of part of the premises by title paramount to that of the landlord, termination of the tenancy by the act of God or the law, or by the right reserved, voluntary surrender, &e., are exceptions to the rule, for in such cases it is held that as the landlord is not in fault he is entitled to recover a proportionate part of the rent (Lawrence agt. French, 25 Wend., 443; Carter agt. Burr, 39 Barb., 59).
In the case under consideration the eviction was not unlawful. The landlord did nothing but what the tenant agreed he might do. The obligation to pay the rent depends upon the enjoyment of the premises or upon the right to enjoy them, but if the tenant by his own contract consents that the landlord may terminate the lease or take possession at will, it seems equitable that he should pay rent to the extent and as long as he occupies. As it was said in Walker's case (2 Coke, 59, 61, part 3, fol. 22): “ If a man leases three acres, rendering rent, and the lessor ousts the lessée of one acre, he shall have an action of debt for no part, but if the lessor recovers , part in an action of waste or enters into part for a forfeiture or by surrender or by special condition for entry into part, or if part of the land be evicted by title paramount, in all these [166]*166cases the rent reserved of the lease for years, which is a rent service, shall be apportioned.” This case seems to have been generally followed and approved, and it may be regarded as settled that where a tenant is evicted without fault on the part of the landlord, the rent will be apportioned. Such apportionment, however, depends upon the extent of the occupation. In this case an apportionment is sought that is based upon the time of occupation. Without any satisfactory reason for the distinction, the rule in such cases seems to be different. “ If rent is payable quarterly, and the tenant be turned out before the end of the quarter thé landlord loses the rent of the current quarter, for rent will not be apportioned in respect to time (Taylor's Landlord and Tenant, 285, sec. 387; Clun’s case, 10 Coke, 128; Zule agt. Zule, 24 Wend., 76).
In Clun's case there was a lease for fifty years, if the lessor should live so long, and the rent was payable quarterly. The lessor died at about the end of one quarter, and it was held that no action would lie to recover the rent, because the rent “ is to be, raised out of the profits of the land and is not due until the profits are taken by the lessee'; and that is the reason that if the land is evicted, or if the lease determines before the legal time of payment, no rent shall be paid, for there shall never be an apportionment in respect of part of the time, as there shall be upon an eviction of part of the land.”
In Zule agt. Zule the term was five years and the rent payable semi-annually, with a reservation by the lessor of the right to sell at any time. The lease was terminated by a sale of the premises about three months before the half-yearly payment became due, and it was held that the lessor could not claim an apportionment of rent, or recover the portion that had accrued since the last rent day, in the absence of a provision in the lease to that effect.
Judge Cowen, speaking for the court., said: “Even where the tenancy was determined by the act of God, as where the lessor was tenant for life, and died intermediate the rent days, the rent could not be apportioned, hence the statutes (11 Geo. [167]*1672, chap. 19, and 1 R. S., 738, sec. 22). The objection is stronger again against the lessor who puts an end to the lease by his own act without necessity. It is etiough to say, however, that there is no special provision, either in the lease or by statute, and without one or the- other rent can never be apportioned in respect to time."
In Nicholson agt. Munnigle (6 Allen, 215), it was held that a landlord who, in pursuance of a written lease,.has terminated the. tenancy between the rent days, could not maintain an action for rent under the lease, or an action of assumpsit for use and occupation of the premises after the last rent day, prior to such termination of the tenancy.' The result is the same where there is a voluntary surrender of the lease to the landlord before the rent, of the current quarter becomes payable (Young agt. Peyser, 3 Bosw., 308).
The same rule prevails in equity as at common law. Judge Story says: “Ho apportionment in respect to time was in any. case admitted by the common law; and this severe doctrine, artificial and unjust as it seems to be, was scrupulously followed in equity ” (Story's Eq. Pr., sec. 476).
The act of 1875 (chap. 542), which provides.for an apportionment of rents, annuities, dividends and other payments, according to the time which shall have elapsed since the last payment became due, has no application to the lease in question, which was executed in 1865.
I am of the opinion that there can be no recovery in this case, because in the absence of a statute or an express agreement to that effect rent cannot be apportioned in respect to time. While the premises in question may not be regarded as real estate for some purposes (The Mayor, &c., agt. Mabie, 13 N. Y., 15) they have been held to be real estate for other purposes (Smith agt. The Mayor, &c., 68 N. Y., 552), and from their nature and the language used in the lease and notice to terminate the same I think they must be considered real estate for the purposes of this action.
The clause in the lease providing for an equitable deduction [168]*168for the future from the rate of rent applies only when a part of the premises has been taken, and refers to an apportionment based on the extent and not upon the time of occupation. The rent would be still so much per year, payable quarterly. The price of the use per day would be less, while in this action the plaintiffs seek to recover the same price per day, but for a period less than a quarter, or at the same rate for a shorter time. By no other construction can adequate force be given to the word rate.
The verdict must be set aside, and under the right reserved a nonsuit entered.