By the agreement of May, 1870, between the defendant and Devereux, then owner of the premises, defendant obtained “ the free use of” the premises, so far as necessary for the purposes of that agreement. The defendant was to place coal there, which was to remain his until sold, and was to put a man in the office as his agent, to have possession of the coal for him. In pursuance' of that agreement defendant entered into the possession and use stipulated by the agreement, and deposited large quantities of coal on the premises.
While this agreement was in force, and on the 14th of October, 1870, the plaintiffs became the owners of the premises undel a statute foreclosure of a mortgage made by Devereux. On the same day, they leased the premises to the defendant, who then had 2,203 tons of coal thereon. The defendant assigned the lease to Gilmore, and sold him the coal. Gilmore obtained a partial possession, but was prevented by Devereux from obtaining full possession. Dev-ereux claimed that under his contract with the defendant he had certain rights in the office, as well as in the coal on the premises.
*339Admitting that the lease implies a covenant of quiet enjoyment, how has there been any breach ? Devereux claims no title paramount to that of the plaintiff. His claim is under his agreement with the defendant. If valid, the defendant is to blame. Mack v. Patchin (42 N. Y., 161), was a case not only of eviction under a paramount title, but really of eviction by the lessor himself.
Christopher v. Austin (11 N. Y., 216), was also a case of wrongful eviction by the lessor.
In the present case the defendant made the agreement, under which Devereux asserted (rightfully or not) certain claims. If rightfully, then the defendant himself is at fault for his being kept out of possession; if not rightfully, then Devereux was a wrongdoer, and defendant should have removed him. (Gardner v. Keteltas, 3 Hill, 330.)
Nor is the present a case where a lessee is kept out of possession of a part by a person holding under a prior lease, executed by the same landlord. (Christopher v. Austin, 11 N. Y., 216; Lawrence v. French, 25 Wend., 443.) And even if it were considered analogous to those cases, the defendant has had the benefit of the principle therein established. The plaintiffs have recovered not for the whole rent, but as for a quamtum meruit.
It may be that if Devereux had been holding adversely to the. lessors, the lease would have been void. (Livingston v. Proseus, 2 Hill, 526.) But the referee has allowed the plaintiffs to recover rent only for that part of which the defendant, or his assignee, obtained possession. Even then if we assume that, at the time of the execution of the lease, the defendant was not, and Devereux was, in possession, still the referee has done no injustice to the defendant. So far only as the assignee of the defendant obtained possession, has the defendant been adjudged to pay. I have examined the exceptions to the admission and rejection of evidence. In the view above taken they are not material.
The judgment of the referee should be affirmed with costs.
Present — LeabNed, P. J., Bookes and Boaedmax, JJ.Judgment affirmed with costs.