The answer in this case denies “ upon information and belief” a claim set up by the plaintiff for damages in not keeping premises in repair.
Upon the trial, the. judge held the answer to be insufficient on this point, and that the complaint in this respect was not denied.-.
It is not necessary, now. to decide what order would be made on a motion to-amend this answer, or to strike out the objeetionableparts, if such motion had been made. It can hardly *29be said that the legislature intended to refuse to. a defendant who has no knowledge of the facts (where as in this case he is prosecuted as a surety) the privilege of making a defence, nor can it be supposed that the legislature intended that, to make such a defence, he should swear positively to the denial of a plaintiff’s claim, when, from his ignorance on the subject, such a denial sworn to would be perjury, because he was swearing to what he did not know, to be the truth. ■ I am at a loss to see how a defendant can make a defence of what he has been told is the fact, if he has no personal knowledge on the subject, unless he is allowed to say that he makes the denial on information. The Code allows a denial. It does not prohibit the qualification that such a denial is made on information obtained from others, and it virtually allows this mode of answer by retaining the mode of verification by which a party swears the pleading to be true of his own knowledge, except as to what is stated on information and belief, and as to those matters that he believes it to be true. It would be idle to tell a defendant he may make such a verification to his answer, but he may not say in his answer that any denial is on information, etc.
But without pressing this discussion any further, I am of the opinion that the objection to the sufficiency of the answer in this respect should not have been allowed upon the trial. The answer was put in by a defendant who was surety, we must presume in good faith, for the judge says that the plaintiff failed to show any damage whatever, and he allowed the damage claimed, simply on the objection to the answer. If the answer was deemed objectionable, it should have been remedied by motion. It contained a general denial of the claim, and the addition of the words “on information and belief” made it no less a denial. The judge should not have disregarded it on the trial, but tried the issue as the parties made it. The amount allowed for damages in this respect must be stricken out as improperly allowed. The claim for the Croton water tax was also improperly allowed.
By the agreement the tenant agreed to pay for the premises the yearly rent of $500, and the Croton water tax for the said *30term, payable quarterly. The lease also contained a covenant that the tenant will pay the charge imposed for the Croton water.
These two covenants are to be taken together, and then they will read that the tenant shall pay $500 annually, and the Croton' water charge, to be divided into quarterly payments. As this payment is to be made to the landlord, it would follow that he would be obliged to pay the tax and collect the same with the rent, in quarterly payments, from the tenant. But if the contrary rule should be adopted, that the whole is payable in one charge, then there is nothing in the lease making the same payable in August, and it is not properly chargeable until the end of the term.
In September the plaintiff took possession of the premises, and let them in his own name for the residue of the term. This he had a right to do; but in so letting the premises, he agreed to lay out $200 upon the premises for baths. It can hardly be supposed that under such an agreement the landlord could lay one half or a third of the rent upon the premises for permanent improvements, and throw the expense upon the tenant or his surety. He is only authorized to rent the premises as the tenant held them. If he sees fit to make improvements, and thereby get an enhanced rent, still for the residue of the term the tenant is to be credited with the whole amount of the rent received. The judge only allowed rent for the months of August and September, for which period the premises were not occupied by the new tenant. This action was brought in December, or previously. It does not appear that any rent had become due under the agreement. By the agreement the tenant covenanted, that in case the plaintiff took possession of the premises and relet the same, and did not obtain sufficient rent to make up the amount of rent thereby reserved, the tenant would pay the difference of rent for the residue of the term.
This difference cannot be ascertained until the term is ended. If the whole rent is collected, the deficiency would be $25. The plaintiff recovers here $41 66 for each month, or $83 32. *31If there should he a loss of rent, it might be more. At the time of bringing this action, the plaintiff could only recover the deficiency, which was $25. By the testimony of Mr. Hackett, the plaintiff, it appears that the tenant, since the commencement of this action, has paid the whole rent up to the first of May. So that, in fact, the plaintiff is entitled to nothing more than the $25, on a settlement of all the accounts, and it would only lead to a circuity of action, to allow the plaintiff to recover more in this suit, in order that the defendant may recover it back in another. The charge for the Croton water might be added to this amount, as forming part of the deficiency, and would, together, make $33 40. This is all that the plaintiff was entitled to in this action at the time of its commencement.
The judgment should be set aside, and a new trial ordered, unless the plaintiff remits all of the recovery except $32 40 ; in which case it should be affirmed for that amount.