[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 463 In the action of Hexter v. Knox (63 N.Y., 561), the present defendant recovered the full value of the use of the premises Nos. 97 and 99 Spring street, included in the lease for the time he was deprived of the possession by the failure of the lessor to complete the buildings thereon, according to his covenant.
The counter-claim for the rent for the quarter ending November 1, 1871, was withdrawn on the trial, and the jury were instructed at the request of the then plaintiff, that in making up their verdict no allowance was to be made to the lessor for rent for that quarter, and the jury made no allowance therefor. The tenant, after having recovered in that action the full value of the use of the demised premises for the time he was deprived of the possession, now resists the payment of rent because of the breach of the lessor's covenant to complete the buildings by the 1st of September, 1871. It would be most unjust if this defense should be allowed to prevail. The verdict in Hexter's favor for the whole value of the use of the premises, of which he was deprived, was the equivalent of possession, and it having been paid, there is no reason in justice or law why he should not pay the rent. He procured the court in his action to hold a rule of damages which gave him the entire value of the premises during the time he was deprived of the occupation, without deduction for the rent he had agreed to pay, and he is now estopped from setting up the want of possession as a defense to this action.
We do not deem it necessary to decide, as an original question, *Page 466 whether the covenant to pay the rent was dependent upon the covenant to complete the buildings on Spring street at the time agreed, so as to make the failure to complete them a defense to any action for rent accruing while the default continued. The defendant, by his former action and his course upon the trial, elected to treat the covenant as independent, and he must now be held to that construction.
The order granting a new trial should be reversed, and judgment at the Circuit affirmed.
All concur.
Order reversed, and judgment affirmed.