Edwards v. Candy

Gilbert, J.: It would be a great stretch of the doctrine of constructive eviction to give that effect to the acts committed by the defendant. We are inclined to hold that such an effect ought not to bo given to them. (Hunt v. Cope, Cowp., 242; Allen v. Pell, 4 Wend., 505; Ogilvie v. Hull, 5 Hill, 52.) Later cases have extended the ride as laid down in those cited. (Dyett v. Pendleton, 8 Cow., 727; Cohen v. Dupont, 1 Sand., 260;, Edgerton v. Page, 20 N. Y., 281; Myers v. Burns, 35 id., 272.) But a substantial deprivation of the beneficial use of the demised premises, or a part thereof, is, according to all the cases, essential to constitute an eviction. Injuries to the tenant, Which do not effect [598] his enjoyment of the premises, it would seem, are not sufficient for that purpose. But it is unnecessary to pass definitely upon this question. For the lease to the plaintiff was made in March; 1874, and was for one or five years, at the option of the plaintiff: Most of the acts of the defendant, of which the plaintiff complains, were committed in the year 1874. The plaintiff l'emained in possession during the whole of that year, and shortly before the expiration thereof elected that the term should be extended four years. Such election was equivalent to the taking of a new lease for four years. The plaintiff having remained in possession during the whole of the term, antecedent to the exercise of his option, there was no eviction, actual or constructive, during that period. It is impossible that an eviction should have occurred without an actual expulsion from, or an abandonment' of the demised premises. (Edgerton v. Page, supra.) The fact, therefore, that the plaintiff remained in possession throughout the year-1874, is a conclusive defense to any claim for damages which he sustained in that year. It appeai-s that the demised premises had been long used by the defendant as a boarding-house, and that the plaintiff hired them for the same purpose. The plaintiff claims that the defendant dissuaded persons from coming there to board by remarks made in 1875, which were disparaging to the plaintiff, and that in consequence his profits were diminished. Assuming this claim to be well founded, we think the defendant’s conduct did not amount to an eviction. The evidence fails to convince us that the plaintiff abandoned the premises in consequence thereof. On the contrary, he remained in possession until November, 1875, when the season for boarding had ended, and we are satisfied that he quit the premises because his business had turned out to be unprofitable. How much, if any part, of that result is attributable to the defendant, and how much to the plaintiff, it is impossible to tell. The other improper acts imputed to the defendant, which occurred in 1875, seem not,to have been relied upon on the argument, and were too trivial to form the basis of a cause of action,. Upon the whole, we think that the plaintiff failed to establish any right of action. The counter-claim was satisfactorily established to the extent allowed by the referee. As the plaintiff has made no point [599] on that subject, a discussion of it is unnecessary. The judgment must be affirmed, with costs. Barnard, P. J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ. Judgment affirmed, with costs.