(concurring.) I concur in the decision reached by my brethren. The lease is a grant of the premises for a period, and the rent is annexed thereto as an incident. While in the quasi equitable action for “use and occupation” a tenant is not answerable unless he has had some beneficial enjoyment of the property, the action of covenant upon a sealed lease for rent does not depend upon occupation or enjoyment of the premises being gained by the lessee. Gilhooly v. Washington, 4 N. Y. 217, 219; Jaffe v. Harteau, 56 N. Y. 398,401. And this is so, though, at the day fixed, tenant demands the possession, and landlord refuses to deliver up possession; for the lessee’s remedy, in a proper case, would only be a counter-claim or cross-suit upon landlord’s covenants, express or implied, to give due possession, to reconstruct the premises, and the like. Etheridge v. Osborn, 12 Wend. 529; Vanderpoel v. Smith, 4 Abb. Dec. 464,—Davies, J., holding: “The omission of a landlord to perform covenants on his part [i. e., in refusing to place or let tenant into possession of that which, by the agreement of the parties, he ought to have enjoyed] is no bar to such lessor’s claim for rent. ” See, also, Edgerton v. Page, 20 N. Y. 285, and Trull v. Granger, 8 N. Y. 115, 118, that the “rent” must be paid, and tenant can only insist on cross-damages.
The tender before suit is no defense, as the answer fails to plead payment into court. Becker v Boon, 61 N. Y. 317. The surety’s undertaking was absolute to pay in case of lessee’s default, and without requiring notice; the rent was payable monthly in advance; and consequently, for above reasons, the judgment against defendant as surety was right, and must be affirmed.