The plaintiff owned the house, and had rented a part of it to the defendant at eight dollars per month. Defendant occupied it from May, 1870, until the 12th September, 1871.
In August, 1871, plaintiff sold the lot on which the house stood to a railroad company, reserving the dwelling-house. After making the sale, he testifies that he informed defendant that he had made the sale, that he intended moving the house to a lot some fifty rods distant, and that he intended to remain *135in the house while it was being moved; and he asked defendant if he wished to stay, and he agreed to do so.
In a short time, the men employed to remove the house commenced to do so, and before it was entirely off from the foundation, defendant with his family left, tendering rent that had accrued up to that time, which plaintiff refused to accept.
About the 26th October, the defendant tendered to plaintiff the key, and he refused to take it, and then brought this action for rent for two months, or up to the 1st ¡November.
Several witnesses were called on the part of the defendant, who contradicted the plaintiff and his witnesses, and swear to an entirely different agreement. -
The justice believed the plaintiff’s version of the transaction, and rendered judgment in favor of the plaintiff for sixteen dollars, and costs.
The defendant appealed to the county court, by which court the judgment was reversed, and the plaintiff appealed to this court.
The county court did not assume to reverse the judgment of the justice because of an erroneous finding of the facts. The defendant had the greater number of witnesses testifying to his version of the transaction, but we cannot say that they were as worthy of credit as the smaller number on the part of the plaintiff. The justice had the best means of judging of the credit to be given to each, and a very clear case must be made of error in his finding of the facts before any court sitting in review can disregard his finding.
The judgment of the justice was reversed by the county court on the sole ground that the defendant had the right, under section 1, chap. 345 of the laws of 1860, to abandon the premises and not be longer liable for the rent, as the premises rented were so injured as to become untenantable, and not being otherwise expressly provided by written agreement or covenant. With all respect to the opinion of the learned judge, it seems to me the statute has no application to the case.'
*136. The statute applies to cases in which the premises, without fault of the lessee, have been so injured as to become untenantable after the lease was made, and where the tenant was bound to pay rent notwithstanding the injury to the premises.
In other words, the statute has no application to a letting to a tenant with the view to occupancy by him during such dilapidation.
The tenant was told he was at liberty to leave, as the building was to be removed. Knowing that, he agreed to remain in possession and to pay rent.
When the premises are let when in tenantable condition and afterwards destroyed, there is manifest propriety in permitting him to abandon them when they become unfit for use, and in relieving him from rent.
If rented with full knowledge that the premises are to be rendered untenantable and with a view to occupancy while in that condition, it would be unjust to enable the tenant to escape under this statute which was never intended to apply to such a case.
The judgment of the county court should be reversed, and and that of the justice affirmed.