In an action for rent, the defendant cannot set up as a defense a constructive-eviction while he remains in possession of the premises (Boreel v. Lawton, 90 N. Y. 247), but it is equally well-settled that a landlord cannot maintain an action for rent if the tenant is able to show an actual eviction from a portion of the premises (Sirey v. Braems, 65 App. Div. 472), that is, an actual eviction from a portion of the premises suspends a landlord’s right to maintain an action for rent during the actual eviction, and this actual eviction would, under section 2244 of the Code of Civil Procedure, be a defense to the proceeding in like manner as though the claim for rent in such proceeding was the subject of the action. It therefore remains to be determined whether there has or has not in fact been an actual eviction of the tenant from a portion of the demised premises.
The agreement between the landlord and the tenant was in writing, and was for “the offices or rooms Nos. 66, 67, 68 and 69 in the Nassau-Beekman Building, known as 140 Nassau street * * * at the yearly rental of $1,000, payable in equal monthly payments in advance on the first day of each and every month during the said term.” In said lease the lessee covenants that “the lessor shall not be responsible for any latent defects or change of condition in the said premises, nor other damage to the same, or to goods, or other things contained therein, or for any overflow, or leakage upon or into- the premises from the croton water, or from any other source.”
I am of the opinion that the evidence does not show that the tenant was in fact deprived of the quiet, and peaceable possession, and enjoyment of the entrance, halls, elevators, stairways, and of his offices. All that the evidence shows is that the iise of his offices was rendered less convenient to him. The evidence also shows that when the lease was made the landlord was making alterations in the building; that the'tenant received a deduction in the rent of six months, part of which was applied to his then existing lease, and part to this lease, and that therefore the *127words from the lease last above quoted that the lessor shall not be responsible, etc., prevent the tenant from claiming an eviction from a portion of the demised premises. I concur with Mr. Justice Freedman.
Final order reversed, and new trial ordered, with costs to appellant to abide event.