ANDREWS, Ch. J.

The substance of the defense set up in the answer, is that the lessor permitted the rooms above those leased to the defendant to be used and occupied by persons who carried on a noisy business, using therein printing presses, and also weights and substances which were thrown down upon the floor immediately over the defendant's rooms, causing great noise and disturbance, thereby interfering with the defendant's use, occupation and possession of his rooms, and preventing him from carrying on his professional business therein, and preventing clients from consulting him, etc. It is further alleged that on divers occasions during the period during which the rent sought to be recovered, accrued, the defendant was compelled to leave his rooms, etc., by reason of the said noise and disturbance; that the throwing down of weights in the room above, cracked and broke the ceiling of defendant's room, causing dust and lime to fall upon his books, furniture, etc., and that water leaked through the broken ceiling and ran into defendant's rooms, injuring his carpet; that the noise, disturbance, etc., was permitted by the plaintiff, and was made with her knowledge, consent and license, and that although requested, she did not prevent it, or cause it to be stopped, and that the defendant sustained damage from the matters stated, in the sum of $2,000.

We think the demurrer to the answer was properly sustained. The action is upon a lease, under seal, for the term of three years, from May 1, 1875, to recover rent accruing for the last half year of the term. The complaint alleges an occupation by the defendant during the whole term, and this allegation is not denied. The averment in the answer that on divers occasions the defendant was obliged to leave his rooms by reason of the noise and disturbance, is not inconsistent with the continued legal occupation and possession of the demised premises by the lessee. The defendant insists that the facts stated in the answer, constitute a cause of action against the plaintiff. But conceding this, the question remains, whether it is available as a counter-claim in an action on the lease, for rent due, under the definition of a counter-claim in section 501 of the Code. It is contended that the facts stated, constitute a breach of the covenant of quiet enjoyment on the part of the lessor, implied in the lease. That such a covenant is implied in a lease, under seal, for a term not exceeding three years, as well since as before the Revised Statutes, was decided in The Mayor, etc., v. Mabie ( 13 N.Y. 151). The general rule is that eviction is necessary to constitute a breach of this covenant. (1 Rawle on Cov. 144.) "The covenant for quiet enjoyment," said SPENCER, J., in Whitbeck v. Cook (15 Johns. 483), "extends to the possession and not to the title, and is broken only by an entry and expulsion from, or some actual disturbance of, the possession." It is true that there are circumstances which may justify the tenant in abandoning the premises, and which in connection with the abandonment, will support a plea of eviction by the landlord, although there was no actual entry, or physical disturbance of the tenant's possession. This was the case in Dyett v. Pendleton (8 Cow. 728). But we know of no case sustaining the doctrine that there can be a constructive eviction, without a surrender of the possession. It would be manifestly unjust to permit the tenant to remain in possession, and when sued for the rent, to sustain the plea of eviction by proof that there were circumstances which would have justified him in leaving the premises. The case of Edgerton v. Page ( 20 N.Y. 281), is a distinct authority for the proposition that there can be no constructive eviction, without abandonment of possession, and that the circumstances stated in the answer in this case, do not constitute a breach of the covenant for quiet enjoyment. The answer does not aver an eviction, but on the contrary admits the continuance of the tenancy during the time for which the rent is demanded. There was no actual entry by the plaintiff. Whether the defendant, upon the facts stated, could have abandoned the premises and pleaded an eviction, to an action for rent subsequently accruing, or whether he now may maintain an action for the wrong of the plaintiff, need not be considered. It is sufficient to say that assuming he has a right of action, it does not arise out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, nor is it connected with the subject of the action, nor is it a cause of action on contract. It could not, therefore, be the subject of a counter-claim. ( Edgerton v. Page, supra. See also Lounsberry v. Snyder, 31 N.Y. 514; Home Ins. Co. v. Sherman, 46 id. 370; Levy v. Bend, 1 E.D. Smith, 169.)

The judgment should be affirmed.

All concur, except RAPALLO and TRACY, JJ., absent.

Judgment affirmed.