Curia,
per Woodworth, J.It appears from the avowries that the defendant demised to the plaintiff certain premises in JVero- York, for the term of five years, ending on the 1st May, 1821, at the yearly rent 'of $350, payable quarterly. The defendant avows the taking of the goods off the premises, on the 8th May, 1821, for $250 rent in arrear, being for *269the rent of the two last quarters, and a part of the second quarter of the last year ; the plaintiff having removed the goods from the demised premises within 30 days previous to the time of making the distress. The lease having terminated on the 1st May, 1821, the first question is, whether the remedy by distress is applicable to this case.
The 13th section of the act concerning distresses, (1 R.L. 437,) declares, that if the lessee, shall convey his goods or chattels from the demised premises, leaving the rent unpaid, it shall be lawful for the lessor, within 30 days, to seize the goods as a distress. The remedy thus given is operative, du ring the continuance of the lease only. After the term has expired, the lessor, by this section, had no other than the common law remedy, which did not allow a distress off the premises. That this, is the construction to be given, is apparent by adverting tq the 16th and 17th sections of the same act, which, after reciting that lessees for years frequently hold over the tenements demised, after the determination of the lease, and that after the determination of such lease, ho distress by law can be made for arrears of rent that grew due previous to such determination, gives the right to distrain in such cases, in the same manner the lessor might have done, if the lease had not been determined ; provided the distress be made within six months, and during the continuance of the landlord’s title, and during the possession of the tenant, from whom the rent became due. In this case, the distress was made within the time limited; the landlord’s title continued; but there is no averment that the plaintiff’s possession continued. The question, then, arises, is the avowry good on general demurrer, without alleging that the plaintiff continued in possession of the demised premises when the distress was made ? It is a general rule that matter, which should come more properly from the other side, need not be stated. Unless the plaintiff’s possession continued, there was no right of distress; it was therefore matter of substance to allege the fact, in order to support the avowry. The proviso forms no part of the plaintiff’s title ; he declares for unlawfully taking his goods. The de? *270fendant must rely on the right given by the 17th section, t& support his avowries. That right is not general, but quailfied. Without bringing himself within the proviso, the Court canno* saJ that any right to distrain existed- The proviso may be said to furnish matter of excuse or justification for the defendant, and need not be negatived in the declaration. (Teel v.Fonda, 4 John. 306.) I think the avowries bad on this ground.
There is another objection which seems to be conclusive; On the 13th April, 1820, (5 vol. L. 178,b.) an act passed to amend the act of April 5, 1813, concerning distresses. This was prior to the distress made, and, so far as it applies, must govern. It has made some material alterations, as to the right of the landlord to distrain. The 7th section declares that the landlord, within 30 days after the rent shall become due, may seize, as a distress, the goods or chattels of the lessee, which may have been conveyed’ away, or carried from the demised premises, and that so much of the 13th section of the act of 1813, as is repugnant thereto, be repealed. Here, then, it is manifest, that even if the defendant had brought himself within the proviso of the 17th section of the preceding act, his right must be governed by the 18th section as amended by the 7 th section of the act of 1820. The effect of the amendment is to take away' the right to seize the goods within 30 days after they were carried' away, and, instead thereof, to authorize a seizure" within 30 days after the rent became clue. In this respect, the 13th section is repugnant to the 7th section. Before the passing of this act, the landlord, by virtue of the 17th section, could, if within its proviso, distrain in the same manner he might have done if the lease had not been determined ; that is, he might take the goods without reference to the time the rent "became due, but within a certain time after they were conveyed away. After the act of 1820, there was no right to' distrain goods off the premises in any case, .but from1 the time the rent was payable. Although the general right to distrain, after the termination of the lease, is six months, by the 7th section, that right cannot be exercised, where more than 30 days have elapsed after the rent became due.
*271This alteration materially affects the security of the landlord; it is thereby lessened. Before the 13th April, 1820, if, at the end of the third quarter, the tenant removed his goods, the landlord might distrain within 30 days, for three quarters rent; but now, on the same state of facts, he can only distrain for the rent of the third quarter ; because no more than that became due within thirty days. The landlord’s right is, in like manner, restricted, where the term has ended : he would only be authorized to distrain for the last quarter of the term, because all the preceding quarters had been due more than 30 days ; and, as to the last quarter, the right is lost unless exercised within that period.
In the avowries pleaded, the defendant claims rent for the third, fourth, and part of the second quarter, amounting to §250, and has distrained for that sum. All but the last quarter had been due more than 30 days, and the second quarter more than 6 months. The defendant had no right to distrain for more than the last quarter, and consequently the avowry is bad for all beyond that amount. Being materially defective in part, it is bad for the whole on general demurrer.
There is another defect in the avowry, which I incline to think material. The act of 1 HA April, 1815, (3 vol. L. 156, e.) declares that no landlord shall distrain in the city of New-York, before making an affidavit, stating the amount due for rent, and filing the affidavit in the Clerk’s office. There is no averment that this step has been taken. Without it, the distress was illegal. This being matter within the knowledge of the defendant, and necessary for his defence, the fact ought to have been alleged in the avowry.
Judgment for plaintiff on the demurrer, with leave to the defendant to amend.
Rule accordingly.