Peck v. Hiler , 31 Barb. 117 ( 1860 )

By the Court, Lott, P. J.

It was decided in this case, as reported in 24 Barbour-, 178, that the rail road mentioned in the pleadings was a part of the demised premises, and that the acts of the plaintiff, as then disclosed^ in tearing up and removing the rails from the road, constituted a partial eviction. The opinion of Justice Emott, who fully discussed the question, was based on the assumption that the rail road, at the time of the commission of those acts, was in actual use by the defendant, under the lease. A new trial has since been had before him, and upon the facts and circumstances then presented it appeared such was not the case, and he came to the conclusion that the eviction was not established, and ordered judgment for the plaintiff.

The question now to be determined is, whether he was right in that conclusion. The principle established by the decision referred to is, that any intentional and injurious interference by a landlord, with the use or beheficial enjoyment, by the tenant, of any portion of the demised premises, is an eviction. The act must be more than a mere trespass. Ch. J. Jervis, in Upton v. Townsend, and Upton v. Greenless, (33 Eng. L. and Eq. Rep. 212, &c.) says, “ It must be something of a more permanent character, done by the landlord, with the intention of depriving the tenant of the enjoyment of the whole or a part of the premises, and it is for the jury to say whether the act was done with such intention.” . The opinion of the other judges was to the same effect. (See also Cowper, 242; Lewis v. Payne, 4 Wend. 426; Etheridge v. Osborn, 12 id. 529; Lawrence v. French, 25 id. 443; Ogilvie v. Hull, 5 Hill, 52; Bennet v. Bittle, 4 Rawle, 339; Edgerton v. Page, 18 How. Pr. R. 359; Notes to 3 Kent’s Com. 9th ed. p. 609.) Testing the case as now presented by this principle, we are of opinion that the judgment below was fully warranted. The tenure of the demised premises commenced on the 1st day of May, 1852. The tenant was “ to have the use of the rail road' in common with others, and put th.e same in order above the chemical works, if he wished to use it,” and the landlord reserved the use of it to himself also. Mow it appears by the evidence that the road was entirely, out of repair; that the defendant used part of it, below, the chemical works, for the purposes of .his business, for a short time, but that he never repaired it, or in any way used the road above those works;, that nothing was transported over any portion, after July, 1852, and that it would have cost more to put the same in repair than to cart the defendant’s goods where they were- wanted. The judge also found as a fact, on sufficient testimony to justify his findr ing, that the defendant removed a portion of the railwáy so as to prevent its use, before any part thereof was taken up by the plaintiff. . The removal by .the defendant took place in the summer, and latter part of the season, in 1852, and that by the plaintiff in April, 1853. The rent reserved by the lease was payable in equal monthly payments, and it was admitted by the defendant that he paid the plaintiff the rent which accrued during the month of May, after the removal of the rails, with knowledge of such removal, before and at the time of payment. It also appeared that when the rent for the months of June, July and August was demanded .of the defendant, he said that he would pay it in a few days, and he subsequently gave his note therefor, but which has not been paid, and nothing was said by him at any of those interviews about the removal of the rails by the plaintiff.

[Kings General Term, February 13, 1860.

It is fairly inferable from all these facts and circumstances, not only that the defendant did not wish to use the rail road above the chemical works, but also that he had determined to abandon the use of the whole of it entirely, long before the tearing up and removal of the rails by the plaintiff in April, 1853. His use of it, in fact, ceased as early as August, 1852, and it was never resumed; not only so, but he had by his own acts rendered it incapable of use. There is therefore no ground for the position or pretext that the plaintiff has interfered with the beneficial enjoyment thereof by the defendant. His acts may have amounted to a trespass, for which a compensation in damages has been given, but do not constitute an eviction.

In this view of the case, the evidence, taken subject to exceptions, was admissible, and the judgment based thereon was right, and must be affirmed with costs.

Lott, Emott and Brown, Justices.]