Bronson, Ch. J. If it be not unlawful to speak of things by their old names, this is an action of covenant on a lease for the non-payment of a quarter’s rent; and the defendant has pleaded an eviction by the landlord.
The proof to support the plea is, that the defendant after occupying the demised premises for about nine months, abandoned the same before the commencement of the quarter in question, on the ground that the basement part of the building, during all the time he was in possession, had been used as a place of prostitution and ill fame. [219] The plaintiff had leased the basement to some person whose *219 name does not appear; But it was not shown that the plaintiff had any connection whatever with the nuisance which induced the defendant to quit the premises ; nor does it appear that the plaintiff knew of the nuisance until the defendant gave him notice of the fact, which was about a month after he had abandoned the possession.
On this case the superior court of the city of New-York gave judgment for the plaintiff, and I do not see how they could have done otherwise. It is possible that the referee might have reported the facts more favorably for the defendant than he has done. But we must take the facts as they are stated, and only such as are stated in the case; and they are so far from making out an eviction by the landlord, that they do not even show any moral delinquency on his part.
In Dyett v. Pendleton, (8 Cowen, 727, and 4 id. 581,) which has been regarded as an extreme case, (see 5 Sill, 54,) the landlord himself drove the tenant out of his part of the house, by bringing a moral pestilence into another part of the building, bio thing oí that kind appears in this case. It is not found that the plaintiff either created or connived at the nuisance of which the defendant complains; nor is it found that the mischief was done by any person deriving title through, from, or under the plaintiff.
For aught that appears the nuisance may have been created by one who' entered in hostility to the plaintiff and his title. There is no principle upon which the plaintiff can be made answerable for the wrong. In the equitable action for use and occupation the English courts hold, that the tenant is not answerable unless he has had the beneficial enjoyment of the property, and they have gone a great way in protecting the tenant against disturbances of all, kinds.
(Edwards v. Hetherington, 7 Dowl. and Ry. 117 ; Salisbury v. Marshall, 4 Car. & Pay. 65 ; Cowie v. Goodwin, 9 id. 378 ; Smith v. Marrable, 1 Car. Marsh, 479; Collins v. Barrow, 1 Moody & Rob. 112.) But the principle of these cases has never been applied to the action of covenant for the non-payment of rent, which does not depend on the fact of occupation or enjoyment. I think the judgment is right, and should be affirmed.
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