The plaintiff’s contention is that on the undisputed facts he was entitled to a direction of a verdict in his favor and that, therefore *239the trial court was not justified in setting aside the verdict. If the plaintiff is right in this contention, it is certain, upon the facts, that injustice will be done the defendant because, concededly, as the result of Selisberg & Co. occupying a portion of the premises under a lease from the plaintiff — which occupancy necessarily interfered with the ability or legal right of the defendant to obtain possession of all of the demised premises and delayed their being suitably fitted up and ready for the purposes of the trust company for which they were hired — the defendant was unable to enter the premises on February 1, 1900, in accordance with the provisions of the written lease.
The appellant insists, however, that “ it is the acceptance of the lease, not the acceptance or occupation of the premises, that creates the liability under a covenant to pay rent.; ” and in support of this proposition, which is sound, reference is made to the case of Mechanics & Traders' Fire Ins. Co. v. Scott (2 Hilt. 550), wherein we find the rule thus stated: “ The extent of his (landlord’s) implied engagement is that he has a good title and can give a free and unincumbered lease for the term demised ; and if the defendant is kept out of possession by the act of any party other than the landlord or one having or holding under another having a paramount title, he must resort to his proper remedy to get possession under his lease.” While the plaintiff, therefore, was not bound after the acceptance by the defendant of the lease to place the defendant in actual possession of the demised premises, he was bound to give him a legal right of entry, unincumbered by any act of his, the plaintiff’s.
As we view the rights of the parties under the law and the decisions bearing upon the relation of landlord and tenant, the plaintiff having agreed to give the defendant the legal right to possession on February 1,1900, and it not being disputed that he could not give possession of all the demised premises, the defendant was not bound to enter into a portion of the premises which would have been of no use or benefit for the purposes for which the lease Was made.
The acceptance of the lease, therefore, under which the defendant obtained the right to the use of the entire premises from the first of February did not render him liable for the rent where a substantial portion thereof was held by another tenant under a *240valid lease from the plaintiff, and where, as here, the defendant never went into actual occupancy of any portion of the premises. Having notified the plaintiff of the obligation resting upon him of getting Selisberg & Co. out and no action having been taken, so far as appears, by the plaintiff to that end, the defendant, had he so elected, would have had the legal right on the first of February to notify the plaintiff that he regarded the lease as terminated and canceled. Upon that date, when the term was to begin, the defendant was legally put to his election, and it was entirely competent for the plaintiff to show, as was attempted to be shown, that not only had the defendant not elected to terminate the lease, but that his acts were such that they are to be legally construed into a waiver of the condition precedent to his liability for rent, namely, his obtaining complete possession.
The further legal .question is presented as to whether, assuming that the undisputed facts proved that, there was á waiver of the condition precedent or an election to go on under the lease, the plaintiff was entitled to recover for the months during which actual occupancy was not had and during which Selisberg & Co. remained in that portion of the building which had been leased to them. Where a person enters into possession of a portion of premises he is liable for the rent of the whole, and if he has not full possession he cannot refuse to pay the rent, but his remedy for his damages “ arising from the failure to receive full possession (is) either by way of counterclaim to the original action for rent or by way of an independent action.” '(O’Brien v. Smith, 13 N. Y. Supp. 408; affd., 129 N. Y. 620.).
Here the counterclaim for damages was abandoned upon the trial, and if by competent evidence it had been shown that the defendant took possession of a portion of the premises, then the plaintiff would be legally entitled to the whole rent and the defendant’s remedy would be by separate action to recover his damages. We recognize that under the authorities slight facts tending to show a defendant’s dealing with the premises are sufficient to prove the taking of possession by him. Thus entry on the land; the putting up a notice to. rent; or the making of repairs, have been held sufficient to establish the fact of entry and actual occupation.
Upon this question, however, of entry on the premises, we think . *241that all the evidence, and there was much of it introduced by the plaintiff, which related to what was done by the- defendant or by Dunn who was associated with him as a member of the committee of the trust company prior to the 1st day of February, 1900, was incompetent. Having obtained the lease in September, 1899, which was to begin on February 1,1900, it was entirely proper for the defendant or for others who. in connection with the trust company were finally to obtain the benefit of the lease, to make contracts for fitting up the offices, so as to co-operate in having them ready for the • trust company’s business when the lease should begin. Such evidence, however, had no bearing on the questions of whether defendant on February 1, 1900, waived his right to rescind the contract or thereafter so acted with reference to the premises that the jury could have inferred by assuming dominion over the premises he had thus elected to continue in possession under the lease. Evidence, therefore, that the defendant or that Dunn acting under his instructions or as a member of the committee had given orders for the iron work or for the letting of a portion of the premises, all based upon the assumption that possession would be obtained on the 1st day of February, 1900, could have no material bearing upon the question of waiver or of actual entry upon the demised premises.
The effect of such evidence upon the jury we are not able to determine nor are we able to say that, excluding all such evidence which in our view was erroneously admitted, there would remain in the case sufficient to justify the direction of a verdict in plaintiff’s favor. Without, however, determining that point, our conclusion, in view of the course which the trial took and the amount of evidence which was improperly admitted, and the erroneous theory upon which the case was submitted to the jury, is that the learned trial justice very properly in the interests of justice exercised his discretion in setting aside the verdict and granting a new trial, and that with the order so entered we should not interfere.
It follows, accordingly, that the order appealed from should be affirmed, with costs.
Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.
Order affirmed, with costs.