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, 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 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 aban*127detriment of premises so as to create a suspension of rent which had accrued during the previous term.
The case of Cohen agt. 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 term, the plaintiff committed acts injuring his quiet enjoyment of the premises. Upon the argument of this cause, 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 agt. Bond, (1 E. D. Smith, 169,) and Drake agt. Cockroft, (10 How. 377.) 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 agt. 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, how ever hard the case may be.”
The judgment at special term should be reversed.