It is not necessary to decide whether the jury could imply a covenant that the buildings leased by the plaintiff should be completed by the 1st of November. If there was any such covenant to be implied, the defendants do not seek to recoup any damages therefor; and this would be the only way in which the breach of such a covenant could be made available to the defendants, after they had taken possession of the premises leased to them.
A tenant has no right to take possession of premises hired by him, and, at the same time, claim that he is relieved from the payment of rent, because some part of the premises is not in a condition such as he contemplated it should be at the time of the hiring. If he is entitled to any redress therefor, he must either claim it, by way of damage, or abandon the premises entirely. The cases cited by the defendants, of Trull v. Granger, (4 Seld. 115,) and The Mayor &c. of New York v. Mabie, (3 Kernan, 151,) go no further than to allow a party damages by way of recoupment, for a breach of an implied covenant of possession.
The answer merely denies that any liability exists, because the premises were not completed; and that the defendants never had possession. This point covers all the alleged errors of the court in refusing to charge the jury as requested by the defendants’ counsel.
The same principle disposes of the other objections of the defendants' counsel. It is said that the lessees never had possession of the premises; but, as this point was distinctly made in the answer, the finding of the jury must be considered conclusive, upon that defense. If the tenants did take possession, then, having retained possession, while the premises were not .completely finished, they should either have completed them *350at their own expense, and charged the cost to the landlord, or asked redress in their answer, hy way of damage. Not having done either, I see no relief to be obtained by them in this action for the recovery of the rent.
[New York General, Term, June 4, 1859.New trial granted.
Roosevelt, Pratt and Ingraham, Justices.]