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. The plaintiff neither took possession of any part of the premises, *334nor did tbe 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 damages; 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, and therefore cannot claim to be relieved from the payment of the rent of premises which he had the entire use of during the whole term. 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 prempus term.
The case of Cohen v. Dupont (1 Sand. 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 term the plaintiff committed acts injuring his quiet enjoyment of the premises. Upon the argument of this case, I supposed 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. Bend (1 E. D. Smith, 169) and Drake v. Cockcroft (4 E. D. Smith, 34). I do not see anything, on further examination, to change that opinion. In those cases, we held that a mere trespass by the landlord, which did not deprive the tenant of his possession, was not a breach of the covenant of quiet enjoyment; and that it was necessary, to establish a right to recover for such a cause of action, 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 covenantee retains the possession, it is impossible that there should have been an eviction, and no action will lie, however hard the case may be.
Judgment at special term should be reversed.
*335Brady, J. —I still acibere to tbe opinion, expressed by me on tbe decision of tbe demurrer in tbis action, tbat tbe answer sets up facts wbicb are admitted to be true, and wbicb constitute a defence to tbis action. I also adhere to tbe opinion tbat tbis case is a mucb stronger one for tbe application of tbe doctrine of 'constructive eviction than Cohen v. Dupont (1 Sand. 260), stated in tbe opinion referred to. My understanding of Judge Daly’s opinion is, tbat tbe defendant not having abandoned tbe premises during the quarter, be was not evicted constructively or otherwise, and is not discharged. In answer to tbat view, I state tbat, by tbe lease, tbe defendant was entitled to a renewal of bis term, wbicb be abandoned because of tbe acts set up in tbe answer ; and tbat if there was no abandonment during tbe quarf%-for wbicb tbe rent is alleged to have accrued, there was an abandonment of tbe premises for tbe further term to wbicb tbe defendant was entitled. I am not aware tbat any case has yet arisen in tbe courts, deciding tbe question directly as to when and under what circumstances tbe defendant must abandon tbe premises, to make an eviction perfect; although I think tbat in tbis case, as I have already stated, there was in fact an abandonment of tbe premises. I understand a tenant to abandon premises if he leave them before his term expires, or bis right to possession ceases, without reference to tbe precise time when tbat abandonment takes place. I also understand the abandonment to be perfect when a tenant, having a' right to a further term, leaves tbe premises upon tbe expiration of tbe original term, and that the rent accruing cotemporaneously with such abandonment does not change tbe relative rights and obligations of landlord and tenant, as they existed immediately prior thereto. Tbe law does not regard tbe fractions of a day. It seems to be con ceded, tbat if the premises are abandoned before tbe rent becomes due, tbe eviction would b§ accomplished without reference to the part or portion wbicb bad expired of tbe period for wbicb tbe rent is claimed. In tbe case of Jackson v. Eddy and others, .cited by Judge Daly, tbe landlord tried to prevent further injury to bis tenant from tbe - causes complained of, and did so *336temporarily. In this case, tbe landlord neither did nor attempted to do anything, 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 point on the question here censidered, in my judgment, 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 •^.contrary, he wantonly permitted it to continue, and acknowledges not only that he did so, but that the defendant, his tenant, in consequence thereof, was compelled 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 whilst they continue and before the rent accrues, 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 ; and, with equal propriety, that if the disturbance continue during the whole period of a part of the term, during which rent accrues and down to the time 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.
Judgment reversed.