I concur with Judge Daly in the opinion that the matters set up in the answer do not constitute an eviction which either suspends or extinguishes the rent sued for.
Down to the period when the rent became due, the defendant remained in full and sole control of the demised premises. Tire plaintiff neither took possession of any part of the premises, nor did the defendant abandon them prior to that time. The acts of the plaintiff which are complained of, were mere trespasses for which the defendant could have recovered his damage, but they did not amount to an eviction, nor would they, in my judgment, have authorized an abandonment of the premises. But whether they were sufficient to justify the abandonment or not, the defendant did not leave the premises, therefore cannot claim to be relieved from the payment of the rent of premises which he had the active use of during the whole time.
The election not to renew a lease which he had alone the right to determine, cannot be considered as an abandonment of premises, so as to cause a suspension of rent which had accrued during the previous time. The case of Cohan v. Dupont (1 Sandf. S. C. R., 260.) does not conflict with these views, because if the cause of offence there was sufficient, the tenant actually left the premises before the rent became due.
The defendant sets up in his answer facts showing that during the time the plaintiff committed acts injuring his quiet enjoyment of the premises. Upon the argument of this cause I sup*12posed these matters set up by way of counter-claim were not within the provisions of the Code on that subject, and were liable to the same objections as were stated in Levy v. Bond (1 E. D. Smith, 169), and Drake, v. Cockroft (1 Abbotts' Pr. R., 203). I do not see any thing, on further examination, to change that' opinion. In these cases we held that a mere trespass hy the landlord, which did not deprive the tenant of his possession, was not a breach of the covenant of quiet enjoyment, and that to establish a right to recover for such a cause of action, it was necessary to show that the tenant was deprived of some part of the demised premises. In St. John v. Palmer (5 Hill, 599), Judge Bronson says, “ If the covenantor retains the possession, it is impossible that there should have been an eviction, and no action will lie, however hard the case may be.
The judgment at special term should be reversed.
Brady, J.I still adhere to the opinion expressed by me on the decision of the demurrer in this action, that the action sets up facts which are admitted to be true, and which constitute a defence to this action. I also adhere to the opinion that the case is a much stronger one for the application of the doctrine of constructive eviction than Cohan v. Dupont (1 Sandf., 260), stated in the opinion referred to. My understanding of Judge Daly’s opinion is, that the defendant not having abandoned the premises during the quarter, he was not evicted, constructively or otherwise, and is not discharged. In answer to that view, I state that, by the lease, the defendant was entitled to a renewal of his term which he abandoned, because of the acts set up in the answer. And that if there was no abandonment during the quarter for which the rent is alleged to have accrued, there was no abandonment of the premises for the further term to which the defendant was entitled. I am not aware that any case has yet arisen in the courts deciding the question directly, as to when and under what circumstances the defendant must abandon the premises to make an eviction perfect, although I think that in this case as I have already stated there was, in fact, an abandonment of the premises. I understand a tenant to abandon premises if he leave them before his term expires, or his right to possession ceases, without reference to the precise time when that abandonment takes place. I also understand the *13abandonment to be perfect, when the tenant, having a right to a further term, leaves the premises upon the expiration of the original term; and that the rent accruing cotemporaneous with such abandonment, does not change the relative rights and obligations of landlord and tenant, as they existed immediately prior thereto. The law does not regard the fractions of a day. It seems to be conceded, that if the premises are abandoned before the rent becomes due, the eviction would not be accomplished without reference to the part or portion which had expired of the period for which the rent is claimed. In the case of Jackson v. Eddy, and others, cited by Judge Daly, the landlord tried to prevent further injury to his tenant from the causes complained of, and did so temporarily. In this case, the landlord neither did, nor attempted to do, any thing, although often requested, but wantonly, maliciously, and negligently permitted the continuance, down to the first of May, when the rent became due, of the injurious acts complained of. It presents, therefore, a very different state of facts on the merits. The case referred to is not, in my judgment, in point on the question here considered, although it shows an eviction to have resulted from acts of the landlord, that were neither wanton nor malicious, and although he essayed to obviate their injurious consequences. Here, however, the plaintiff acted wantonly and maliciously. He knew of the disturbance complained of, and made no effort to remove or prevent it. On the contrary, he wantonly permitted it to continue, and acknowledges not only that he did so, but that the defendant, his tenant, was compelled, in consequence thereof, to abandon the premises, and lose the benefit of his renewal. The defendant did not abandon the premises during the quarter, but he did during the continuance of the disturbance, which had not ceased, but was still kept up down to the time of such abandonment, wantonly and maliciously; and hence the conclusion, in my opinion at special term, that the rent, in cases like the present, is suspended only during the continuance of the acts complained of, unless the tenant abandon the premises while they continue, and before the rent accrued, in which case they become a bar. It follows from this, that if the disturbance cease before the rent becomes due, and while the tenant is still in occupation, the rent may be recovered. It also follows, with equal propriety, that if the disturbance con*14tinue during the whole period of a part of the term during which rent accrues, and down to the time when the rent becomes due by the agreement, the rent cannot be recovered; inasmuch as his right to abandon continues down to the very moment he does so, and more especially, as in this case, where he abandons the premises and a term thereof.
For these reasons I think the judgment at special term should be affirmed.