The skylight constructed for the use of the store leased by plaintiff to the defendants, was an appurtenance to the demised premises. The right to enjoy its use passed under the lease. At the time of making the lease, the light was obstructed by a carpet and billiard table, placed thereon by the tenants of the upper part of the building. I think it was competent to show, not only that the skylight was constructed for the purpose of lighting the floors below, and that it was so pointed out and represented by plaintiff, but also that she, by her agent, represented that the apparent obstruction was temporary and would cease on the occupancy of the store below. The offer was in substance to show that in point of fact the plaintiff by a prior lease had given the tenants of the upper floors the right to stop the use of the light by covering the skylight, and thus had prevented herself from giving possession of the enjbyment of the light under her lease to defendants, as an appurtenant to the premises demised, and that by this act defendants were prevented from such enjoyment during the whole time of their occupancy. This was accompanied by an offer to show the frequent promises of the plaintiff to put defendants into enjoyment of the light; and that the rent of the first two years was paid quarterly as it matured, under the strong assurance of plaintiff that the obstructions should be promptly removed. All this evidence was excluded, apparently because the defendants continued in possession of the store during the period in which the rent accrued for which the suit is brought.
It seems to me the evidence offered ought to have been received. It was not offered with a view to show a different contract between the parties than that expressed in the lease, but to show that defendants had been deprived by the acts of plaintiff of the enjoyment of a valuable appurtenance, to the use of which they were entitled under the terms of the lease, and thereby suffered serious damages which they propose to recover as a counter-claim in this action.
I do not think the payment of the preceding rent prevents the ten*222ants from asserting their rights under the lease and alleging their injuries, when an action is brought for subsequently accruing rents; and that certainly ought not to be the case when the assurances of the landloi'd have persuaded them to make the previous payments. (Cook v. Soule, 56 N. Y., 420.)
The judgment should be reversed and a new trial granted, with costs to abide the event.
DaNiels and Bbadt, JJ., concurred.Ordered accordingly.