This is a reargument of an appeal from a judgment of the city court in favor of the plaintiff. A verdict was directed for the amount claimed, being the rent of a certain building for March and April, 1886, on the ground that a previous judgment recovered by plaintiff against defendant for tibe rent of the same premises for February, 1886, operated as a bar to all *612defenses raised in the present action. In this I think error was committed, and I concur in the opinion rendered by Judge Daly after the former argument. Granting that, under the doctrine of res adjudicata, a prior judgment recovered in an action between the same parties becomes a bar as to all defenses actually raised or which might have been raised therein, the question arises whether the defense of eviction, relied on in the case at bar, could have been successfully interposed in such former action. It appears that defendant did not vacate the premises until March 1st, and I am therefore of opinion that he could not have pleaded eviction as a defense to the February rent. In Edgerton v. Page, 20 N. Y. 281, it was said by Grover, J., that “the true rule from all the authorities is that while the tenant remains in possession of the entire premises demised, his obligation to pay rent continues. ” Again, in Boreel v. Lawton, 90 N. Y. 293, the court of appeals say:” “But we know of no case sustaining the doctrine that there can be a constructive eviction without a surrender of the possession. It would be manifestly unjust to permit the tenant to remain in possession, and, when sued for the rent, to sustain the plea of eviction by proof that there were circumstances which would have justified him in leaving the premises. ” This is only another way of saying that one cannot raise the defense of eviction v unless he has been evicted. A tenant is evicted when he vacates, either because expelled by actual force, or because the landlord has been guilty of such faults of commission or omission in relation to his duty towards the premises as to deprive the tenant of the beneficial enjoyment thereof. A tenant may not remain in possession, and, because circumstances exist which would have authorized him to leave, treat the matter as if in reality he had vacated. This is the erroneous theory on which the general term of the city court seem to have proceeded in both of their opinions rendered in this case. It makes no difference whether, if the lessee remains in possession, he may or may not be permitted, when sued for rent, to counter-claim for breach of covenant on the part of the lessor. That question does not arise here. The defendant sets up eviction as a defense, and he could not have raised such defense in the former action, because he continued in possession during the whole of February.
It requires but slight reflection to see what a great practical injustice would result if the position taken by the court below were sustained. The court of appeals have held that the tenant cannot raise the defense of eviction till he vacates. Therefore defendant could not have made such defense in the suit for the February rent. Now the city court say that the tenant shall not plead eviction in the present suit for the March and April rent, because some of the facts on which the constructive eviction is based existed when the former suit was brought. Thus, through what might almost be called technical legerdemain, defendant would be precluded from ever raising or getting the benefits of a most meritorious defense, and be obliged to pay the rent for the full term, though the landlord had violated all the covenants of the lease. What would justify a tenant in vacating his premises as for an eviction depends so much on the terms of the lease, the nature of the covenants, the circumstances under which it was made, the condition of the premises at the time they were hired, who had control of the machinery, the circumstances of the omissions of duty, the nature of the negligence, etc., none of which were fully presented on the trial of this action, because of the erroneous theory on which it was tried, that we deem it premature to discuss that question at this time. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.