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in our judgment, it was error for him to direct a verdict for defendant. Judgment reversed, and a new trial ordered, with costs to ap pellant to abide event of action.

(6 Misc. Rep. 531.)

ROMAINE et al. v. BREWSTER.

(City Court of New York, General Term. January 18, 1894.)

COUNTERCLAIM-MATTERS ARISING OUT OF SAME TRANSACTION.

Where a tenant suffered constructive eviction by reason of the unhealthful condition of the premises, owing to which his family became ill, a claim for the expenses of moving, medical attendance, etc., arises out of the same transaction as is set forth in a complaint by the landlord for rent accruing after the eviction, and is therefore a proper subject of counterclaim in such action.

Appeal from trial term.

Action by Benjamin F. Romaine and others against Thomas T. Brewster. From a judgn.ent in favor of plaintiffs, defendant appeals. Reversed.

JJ.

Argued before FITZSIMONS, NEWBURGER, and McCARTHY,

Davison & Chapman, for appellant.

Herman W. Schnitz, for respondents.

MCCARTHY, J. This action is brought to recover the rent, for the months of August and September, of a flat or apartment on the top floor of an apartment house in the city of New York, known as the "Lyndhurst." The allegations of the answer and counterclaim (which are conclusive as to the facts for the purposes of this argument) show that the plaintiffs failed to properly repair and care for certain parts of the building entirely within their care and control as landlords, and not leased to any particular tenant. There were frequent overflows and leakages from a large tank on the roof down into and which caused the apartment to become and remain so damp and unhealthful that the defendant was obliged to vacate, which he did on or about the 12th day of July, 1893, i. e. there was constructive, eviction as of this date. Owing to the unhealthful condition of the flat, defendant's wife became seriously ill, and the defendant suffered damages in consequence thereof, as specifically alleged, to wit, expenses of medical attendance and drugs, loss of service, etc. He was also put to unexpected, and otherwise unnecessary, expense in finding another place of abode, and removing his family and household effects thereto. These damages he sets up by way of counterclaim. The plaintiff has demurred to the counterclaim on the ground that it is not a cause of action arising out of the contract or transaction set forth as the foundation of the plaintiff's claim, to wit, "the recovery of rent." It is to be noted that the constructive eviction occurred before the rent sued for became due. By the demurrer, the facts set out in the amended answer as constituting a counterclaim are conceded, but claimed to be insufficient. The lease is

in writing and under seal, for the term of 11 months. The covenant of quiet enjoyment is therefore implied, and this is so in regard to every lease under seal for a period not exceeding three years. The main object of a covenant for quiet enjoyment is to protect the lessee from the lawful claims of third persons having a title paramount to the lessor; but such covenant, when fully written out, provides also for the protection of the lessee against the unlawful entry of the lessor himself. Consequently, where the law implies such a covenant from the character and terms of the instrument not containing any express engagement, the scope of the implied guaranty should be equally extensive. And it need not be averred in the pleading that the grantor acted under a claim of title; but, if the character of the act be such as reasonably to show that the defendant acted upon such an assumption, the action will be sustained. Mayor, etc., v. Mabie, 13 N. Y. 156, 157. And an eviction, either actual or constructive, is necessary to constitute a breach of this covenant. Boreel v. Lawton, 90 N. Y. 293, 296; Edgerton v. Page, 20 N. Y. 281. An eviction is defined to be when there has been an obstruction to the beneficial enjoyment of the premises, and a diminution of the consideration of the contract, by the act of the landlord. See McAdam, Landl. & Ten. pp. 478, 479. And it is not necessary that there should be actual expulsion of the tenant from the premises. If the landlord commits or suffers acts to be committed which make it necessary for the tenant to remove, this is equivalent to expulsion. See Tallman v. Murphy, 120 N. Y. 345, 352, 24 N. E. 716. If the law, as thus far presented, be correct, then the facts set out in the alleged counterclaim amount to a breach of the contract of letting, and arose of the contract or transaction set forth in the complaint, and are connected with the subject of the action, and therefore a proper subject for counterclaim. Grover, J., in Edgerton v. Page, 20 N. Y., at page 286, says:

"Unless the acts of the defendant amount to a breach of the contract of letting, they are not connected with the subject of the action. In the case

of Mayor, etc., v. Mabie, 13 N. Y. 151, it was held by this court that a covenant for quiet enjoyment by the lessor was implied in a lease under seal for a term not exceeding three years, since, as before, the Revised Statutes; that this covenant was broken by an interference with possession by the lessor under a claim of right; consequently, that damages sustained from such acts might be recovered in an action for rent."

See, also, Cook v. Soule, 56 N. Y. 422; Code Civil Proc. § 501. The counterclaim must have such a relation to, and connection with, the subject of the action that it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the counterclaim should be settled in one action by one litigation, and that the claim of one should be offset against or applied upon the claim of the other. Carpenter v. Insurance Co., 93 N. Y. 552, 556, 557. Here, the subject of the action is the recovery of certain rent under the terms of a written contract, and the counterclaim is to recover damages by reason of the breach of said contract. The cases cited by the respondent have been carefully examined, and do not support his contentions,

but rather sustain the law presented here. In those cases the defendant either held over, and thus waived all objection, or the tenant was in possession of the premises during the whole of the term, and therefore there was no abandonment, or constructive eviction, or breach of the covenant of quiet enjoyment; and that any damages which the defendant may have suffered could not be allowed under the contract which was the subject of the action, but rather against the plaintiff as trespasser or wrong-doer. The facts here, however, are entirely different. For these reasons the judgment sustaining the demurrer and dismissing defendant's counterclaim should be reversed, and the demurrer overruled, with costs. All concur.

(6 Misc. Rep. 536.)

LECHOWITZER v. HAMBURG AMERICAN PACKET CO.

(City Court of New York, General Term.

CARRIERS-SPECIAL PROVISION IN TICKET-EFFECT.

January 18, 1894.)

A passenger is not, by mere acceptance of a ticket, bound by a special provision therein limiting the liability of the carrier for loss of baggage.

Appeal from trial term.

Action by Chaim Lechowitzer against the Hamburg American Packet Company to recover for baggage alleged to have been lost on defendant's steamship. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before FITZSIMONS and NEWBURGER, JJ.
Wheeler, Cortis & Godkin, for appellant.
Nicholas Aleinikoff, for respondent.

NEWBURGER, J. This action was brought to recover for bag. gage claimed to have been lost on the steamer Sorrento while on a trip between Hamburg and New York. On the 19th day of August, 1891, the plaintiff took passage on said steamer at Hamburg for New York. He gave his railroad check for his baggage to the ship's officials, for which he received a slip, and the officials obtained his baggage, and put it on the steamer, where it was afterwards seen by the plaintiff and his witness. Its loss and value were not disputed. Defendant's defenses were that the baggage was not delivered to it, and not lost in its custody; that there was no proof of negligence on its part; and that the steamship Sorrento did not belong to the defendant; and that, even if it were proved that it did, the plaintiff was traveling under a contract ticket which lim ited the defendant's liability in any event to 200 marks. The trial justice, in his charge to the jury, among other things, said:

"If you believe that this ticket received by the plaintiff contained the printed matter, as appears upon the ticket offered in evidence by the defendant, and that the plaintiff either read or that it was explained to him, the plaintiff is bound by this limitation, and cannot recover from the defendant for more than is limited in this contract. The plaintiff's attention must have been called to it, or he must have assented to it in some particular; but the mere fact of the paper not having been read to him would not exempt him from the terms of the contract. In other words, it was not

necessary to have it read to him, and if it was explained to him, or if, by any means, he assented to its terms, he would be bound by it equally as if he had read it."

Exception was taken by the appellant to this part of the charge. We think that this was a proper statement of the law of this case. It is not denied that the defendant, if liable at all, is liable for the full value of the baggage, unless the common-law liability has been modified by contract with the plaintiff, whereby the defendant's liability would be limited to 200 marks. No such contract arises in law from the acceptance of a receipt or ticket under the circumstances of this case. They do not justify the inference that the plaintiff agreed to be bound by the special contract in the receipt. There was no negotiation or agreement that the plaintiff should receive any reduced rates for himself and family, nothing from which the court could hold that the plaintiff assented to the special contract. The cases cited by the learned counsel for appellant-Wheeler v. Navigation Co., 72 Hun, 5, 25 N. Y. Supp. 578; Steers v. Steamship Co., 57 N. Y. 1; Zimmer v. Railroad Co., 137 N. Y. 460, 33 N. E. 642— were cases in which the court held that the circumstances thereof, to wit, experience in traveling at reduced rates, discussion as to the disposition of the boxes and trunks, would warrant the court in inferring that the passengers had knowledge of the contents of the contract. No such assumption is warranted by the evidence in this case. For these reasons the judgment must be affirmed, with costs.

(6 Misc. Rep. 527.)

HEYMAN v. SMADBECK.

(City Court of New York, General Term. January 18, 1894.) INTERPLEADER-Adverse CLAIMS.

Where defendant, in an action on an award, seeks to interplead a third person, who does not claim any right to the award, but claims that he is entitled to a debt on which the award is predicated, it is not a case where two persons are claiming the same thing, though the award is void because of irregularities.

Appeal from trial term.

Action by Adolph Heyman against Louis Smadbeck. From an order granting a motion for an interpleader, plaintiff appeals. versed.

Argued before FITZSIMONS and NEWBURGER, JJ.

Otto Irving Wise, for appellant.

Edwin L. Kalish, for respondent.

Re

FITZSIMONS, J. The plaintiff's cause of action is based upon an award. The person whom the defendant seeks to interplead (one Meier) does not pretend or claim that he is entitled to said award, but claims that he is entitled to the debt upon which the award is predicated. Even the defendant's moving affidavits show this to be so. It is therefore apparent that two persons are not claiming the same thing, which is absolutely necessary before the right to an interpleader is established. The fact alleged by defendant that

the said award is based upon irregular proceedings, and is therefore void, is proper and good by way of defense, and should be so pleaded in defendant's answer, but does not entitle him to an interpleader. The defendant's moving papers conclusively show that he is not subjected to a double demand for the same thing. The order must therefore be vacated, with costs.

NEWBURGER, J.. concurs in the result.

(6 Misc. Rep. 534.)

SANFORD v. AMERICAN DIST. TEL. CO. (City Court of New York, General Term. MASTER AND SERVANT-WHEN RELATION EXISTS.

January 18, 1894.)

A messenger sent by a district telegraph company in response to a call from one of its boxes is the agent of the company, and it is liable where the messenger carelessly loses a package which he was called to carry.

Appeal from trial term.

Action by Benjamin G. Sanford against the American District Telegraph Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before FITZSIMONS and NEWBURGER, JJ.

George H. Bearons and Rush Taggart, for appellant.
McIntyre & Settell, for respondent.

FITZSIMONS, J. The defendant is a common carrier, and as such must carry out every contract assumed by it, except where prevented from so doing by the act of God or the common enemy. The question in this case is, did the defendant contract to deliver the plaintiff's money to his bank for deposit? If so, then, in my opinion, the judgment herein should be sustained. The defendant has distributed throughout the city about 30,000 call boxes. Some of them are placed in private places, others in public places. The one which plaintiff used was situated in the Continental Na tional Bank, and, as far as the manager of the messenger department of defendant knows, it might be in a public place in said bank. In such cases, when from the call box is sent word for a messenger to defendant's office, one is sent, and he performs the duty required from him by the caller without first returning to said office; and such is the instruction to such messenger boy by defendant. Such messenger is then the agent of the defendant for the services required, and his act is the act of the defendant. His carelessness is its fault, for which it is liable. The fact that defendant had a contract with the Continental Bank does not concern plaintiff unless his dealings with defendant were had with reference to such contract, which is not the case here. There is ample evidence showing that the boy who undertook to carry plaintiff's money to his bank was one of defendant's messengers, and, as above held, its agent, and that he lost the money intrusted to him, by his negligence, is also apparent; and defendant's lia

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