Etheridge vs. Osborn, 12 Wend. 529

By the Court, Savage, Ch. J. The only question properly arising upon this bill of exceptions is, whether, under the lease between the parties, occupation by the tenant being admitted» the landlord was entitled to rent. The lease is admitted by the pleadings. None of the evidence on the trial is stated, except an admission, that the tenant was in possession, and that he occupied the premises for the time for which rent was claimed, and that no rent had been paid. On this statement there can be no doubt that rent must be paid.

It is the express stipulation of the parties that it shall be paid ; it is reserved by the lessor; the lessee covenants to pay it, and it is agreed, that if it shall not be paid in SO days after the day on which it is stipulated to be paid, the landlord may distrain; there is no room for. argument about it. The cause seems to have been tried upon the assumption, that the tenant had not enjoyed the full benefit of the water for the use of his saw-mill: and that this deficiency arose from the fault of the landlord, in not making a sufficient raceway.

This statement of facts will not relieve’ the tenant from the payment of the rent, unless there has been some act on the part of the landlord which amounts to an eviction, in whole or in part, from the demised premises. That has not been shown. When the lease was executed, the raceway had not been dugr but the landlord covenanted that he would dig it. If it was not done at all, the tenant should not have taken possession» if he did not intend to pay rent; but having taken possession, ancj occupied the premises, the rent must be paid. In this respect the case is very much like that of Allen v.

Pell, 4 Wendell, 505. There the landlord let an unfinished house and agreed to finish it by a certain day, but did not do it. It was held by the common pleas of New-York, and also by this court, that if the tenant actually occupied the house, he was bound to pay the rent, and had his remedy against the landlord upon his covenant; but could not set off such unliquida-ted damages against the rent. The fact of possession subjects the tenant to the payment of rent, unless there has been an eviction. In this case there has been no eviction.

An eviction consists in taking from the tenant some part of the demised premises of which he was in possession; not in refusing to put him in possession of something which, by the agreement, he ought to have enjoyed. A tenant cannot be evicted from that which he never possessed. It is impossible therefore, upon the assumed state of facts, that there can have been an eviction.

Had the landlord, after the raceway was dug, and the water let in, and enjoyment by the ten-' ant, subsequently diverted the water from the raceway, or a part of it, that I think would have amounted to an eviction, within the case of Lewis v. Payn, 4 Wendell, 423, and Dyett v. Pendleton, 8 Cowen, 727, which last case, in the court of errors carried the doctrine of eviction to its utmost verge.

That doctrine being inapplicable here, and the damages sustained by the tenant for the breaches of covenant by the landlord not being a proper subject of set-off, it follows that the tenant must pay the rent, and sue the landlord upon his covenant to obtain redress, if his covenants have been broken. These are the principles which must govern in the decision of this case ; it follows that the defendant is entitled to a judgment upon his avowry, notwithstanding a verdict may have passed for the plaintiff on the third and fourth pleas.

The judgment in the court below must be reversed, with • costs; venire de novo to be awarded by Herkimer common pleas.