A careful consideration of the opinion of the court, written by Mr. Justice Woodward, fails to secure my concurrence, and for these reasons: . ■
The action is for damages sustained by the plaintiffs by reason of’ their eviction from premises at the corner of Fulton and Jay streets, Brooklyn. Prior to June, 1898, the defendant was the owner of the land and had erected thereon a large eight-story building, with two cellars. On June twenty-first the defendant executed to the plaintiffs a written lease of the store on the ground floor, to be occupied by them as a clothing store, and they entered into possession and fitted up the store for the purposes of their business. The defendant retained possession of the cellars and other parts of the building, and the plaintiffs paid the rent for December in advance.-
On December second the city of New York notified the plaintiffs *298that the building was, in a dangerous condition and liable to collapse, took possession of the same and commenced an action against the defendant to have it condemned. On the trial of the action the court found, as matter of fact, that the building rested upon brick piers in the cellar, capped with stone surmounted with cast iron shoes upon which were' iron columns that carried a dead load of 306,000 pounds on each pier; that “ the brickwork throughout the cellar at the present time is uniformly bad, and the mortar can easily be removed .from the bed beneath the; capstones and brickwork and crushed to a powder; ” that several of the iron plates and capstones were broken; that some piers were overloaded to the extent of eight tons; that foundation piers were cracked'; that the premises were unsafe and dangerous and the building in imminent danger of falling; and on December thirteenth judgment was rendered commanding the defendant to take down and remove the four upper stories, and the brick walls on both streets.
Meanwhile the building department of the city erected a number of massive shoring timbers from the curb to the second and third stories of the building, put up a rope barrier about the sidewalk and stationed policemen, whereby the public was excluded from the store of the plaintiff's 'and their business use of the building was practically destroyed.
On December fifteenth the plaintiffs, having removed their stock, addressed and delivered a letter to the defendant, stating that they “ have been obliged to quit and vacate the said premises, because the same are dangerous and untenantable in consequence of your failure to maintain the parts of the building in your possession and under your control in such reasonably safe state as to. support and preserve the premises rented to us against injury and collapse. We hereby surrender possession of the said premises rented to us by you and return to you the keys therefor. By reason of the condition of the said premises and the necessity of removal therefrom we have suffered great damage, for which we will hold you responsible.”
On December nineteenth the defendant Avrote to the plaintiffs accepting the surrender, but denying his liability for damages. Subsequently the entire building was taken down in accordance with the judgment. The plaintiffs thereupon brought this action to recover their damages.
*299The complaint alleges that the building’ was in a dangei’ous condition, unsafe for human occupancy and liable and likely to fall, and that the defendant knew the facts, or could with reasonable diligence have known them, but that they were unknown to the plaintiffs, and could not by reasonable diligence have been known to them.
The theory of the action is expressed in the allegation of the complaint : “ And under and by virtue of the fact that the defendant •leased the premises aforesaid to the plaintiffs and retained in his possession and under his control the other portions of the building •not let and rented to the plaintiffs, the said defendant became and was under an obligation to the plaintiffs to keep and maintain the parts of the building not let and rented to the plaintiffs in such secure, firm, stable and proper condition that the premises let and rented to the plaintiffs might not be endangered, rendered insecure or untenantable or unfit for occupancy or unfit for the purposes of the business for which the same had been let and rented by the defendant to the plaintiffs.”
The issues were tried before a jury, which found a verdict for the plaintiffs in the sum of $5,000. At the close of plaintiffs’ evidence, and again at the close of all the evidence, the defendant moved for a dismissal of the complaint, on the ground “ that no express promise of the defendant to repair or preserve the building had been alleged or proved; and upon the ground that the defendant was under no obligation to keep the premises in a tenantable condition during the lease.” The defendant also moved to set aside the verdict and grant a new trial, on the ground that the verdict was for excessive damages and contrary to the evidence and to the law.
There is no' certificate that the record contains all the evidence, and it must, therefore, be assumed that there was evidence upon all the allegations of the complaint sufficient to sustain the verdict and its amount. The appeal comes to this court solely on the exception to the refusal of the court to dismiss the complaint and the appeal from the order denying a new trial.
Defendant’s counsel, in his brief, concedes that the exception to the refusal to dismiss the complaint raises the only question presented on this appeal. His contention is . that there was no legal liability upon the part of the defendant to keep the premises in tenantable condition.
*300The lease contains a covenant that lessees, on performing the covenants on their part, “ shall peaceably have, hold and. enjoy the said premises for the term herein leased.” In Boreel v. Lawton (90 N. Y. 293) the court said (pp. 296, 297): “ The general rule is-that eviction is necessary to constitute a breach of this covenant.. (1 Rawle on Cov. 144.) ‘ The covenant for quiet enjoyment,’ said Spenoeb, J., in Whitbeck v. Cook (15 Johns. 483), ‘ extends to the possession and not- to the title, and is broken only by an. entry and expulsion from, or' some actual disturbance of, the possession.’ This latter - case was decided upon the authority of Waldron v. M’Carty (3 Johns. 471) and Picket v. Weaver (5 id. 122).
In the case at bar there was a constructive eviction founded upon a condition of the premises which amounted to' a nuisance. (Bradley v. De Goicouria, 12 Daly, 393.) Such was the effect of the judgment of the court in the action brought by the city against the defendant, and even if the defendant were not bound by that-judgment, the same facts appear in the evidence in the present, action, and are sufficient to show the creation and maintenance of a. nuisance by the defendant.
It is true that the general principle is well settled that as between landlord and tenant there is no implied covenant in a lease that the demised premises are fit for occupancy or the particular use which, the tenant intends to make of them. (Thomp. Neg. 323; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 249.) But there are exceptions to this general rule.
' In O^Brien v. Capwell (59 Barb. 497) it was declared that as-between landlord and tenant, “ when there, is no fraud or false-representations or deceit, and in the absence of an express warranty, or covenant to repair, that there is no impliéd covenant that the demised premises are suitable or fit for occupation, or for the particular use which the tenant intends to make of them, oi- that they are in a safe condition for use; and that. the principle of cmeat emptor applies to all contracts for the letting of property,, real, personal or mixed, as much as to contracts of sale, with one or two recognized exceptions, which do not apply in this case.” It does not appear what were the exceptions to the general rule to which the court referred, but I think that one of them occurs where the landlord, prior to the lease, has created, and. both before *301and after the execution of the lease has maintained, such a danger, ous condition of affairs as amounts to a nuisance and leases the premises, knowing the existence of such nuisance or being bound to know the same, and the lessee has no means of knowing the facts: and such is the condition of facts established by the record and verdict in the present action.
This exception is recognized in a case cited by the learned counsel for the defendant. In Krueger v. Kerrant (29 Minn. 385), which was an action for damages occasioned to a tenant by a defective roof, the court said (pp. 387, 388): “ The authorities generally agree that the parcel tenant or owner may, in such case, have an easement of ingress and egress over the common passage-ways, and of shelter in the roof. But this does not throw upon the landlord the burden of actively undertaking to keep the building or-any part of it in repair, unless he has agreed to do so, or wnless it is in danger of becoming a nuisance. In Chauntler v. Robinson (4 Exch. 163) the court decide that the only obligation cast upon the •owner is to prevent its becoming a nuisance.”
In Quigley v. Johns Manufacturing Co. (26 App. Div. 434) we cited (p. 440) and followed the doctrine stated by Van Brunt, J., in Bold v. O'Brien (12 Daly, 160): “ The landlord, as far as the tenant is concerned, where the tenant occupies but a small portion of the tenement, is bound to keep the parts of the tenement under his control in such a state of repair that the tenant may occupy his premises with safety.” We added, Mr. Justice Bartlett writing, u The rule has frequently been asserted in the law of landlord and tenant that a landlord who occupies the upper story of his building, leasing the lower story to a tenant, may not negligently derange the construction of the upper story so as to injure the property of the tenant on the floor below.”
There is abundant evidence to show a condition of affairs amounting to a nuisance constituting a breach of the covenant for quiet enjoyment and justifying the removal of the plaintiff from the ■ building; and this was such a constructive eviction as made the defendant liable for all the damages naturally and necessarily resulting therefrom.
Defendant’s counsel, however, contends, on the authority of Kelly v. Dutch Church (2 Hill, 105), that the rent reserved in the lease *302is the measure of the plaintiffs’ damage as being a just equivalent for the use of the demised premises. That case was one where the plaintiff claimed to have been evicted by failure of title,, and there was no such question as is raised here, of eviction by a nuisance;. and the measure of damages is different.
In Snow v. Pulitzer (142 N. Y. 263), where a lessee of premises, which he had leased and occupied for business purposes was evicted and his business broken up by the unlawful acts of his landlord^ his expenditures in fitting up his store and his damage to stock and the prospective profits of his business for the remainder of his term were held to be proper items of damages.
It may also be said that by his failure to bring up the record the defendant is precluded from setting up that: the damages are excessive.
For' these reasons I think that the judgment should be affirmed.
Judgment and order reversed and new trial granted, costs hr abide the event.