The Mayor, &c., of New York v. Mabie.

on their part contained in the lease, but is one which the law imposes upon every member of the community.

It cannot therefore be said, that the claim or demand of the defendant springs out of the contract or transaction, which creates the liability on his part. It does not arise out of any fraud inducing the acceptance of the lease, nor out of the breach of any covenant on the part of the plaintiffs, contained in it, or of any promise made contemporaneously with it.

It arises from a tort, which might as well have been committed by a stranger as by the plaintiffs, which was subsequent to the execution of the lease, and the entry by the defendant upon the enjoyment of the thing demised.

It may be urged, that if a tenant is deprived, by the lessor, of the thing letten in whole or in part, the obligation to pay rent ceases, because such obligation has its force only from its consideration, which is the enjoyment of the thing demised. (Gilbert on Rents, p. 145.)

That an unlawful interference by the lessor, with the lessee's enjoyment of the premises, rendering their use less valuable, although not amounting to a technical eviction, deprives him, in part, of the consideration of his covenant to pay rent, and therefore presents the case of a partial failure of consideration, which should operate to reduce the plaintiff's recovery.

To this it may be answered, that all the cases in which the doctrine of recoupment has been applied, are those in which the defendant failed to ultimately receive a full consideration for the sum sought to be recovered of him. When sued for the price of property which he was induced to buy by reason of fraudulent misrepresentations as to its quality, by showing the fraud, he establishes the fact, that he at no time had the whole of that which constituted the consideration of his promise to pay the contract price. (Van Epps v. Harrison, 5 Hill 63-66.) He was never put in possession of that which he contracted to buy.

But if the property had been as represented, and subsequent to its delivery to the defendant, the plaintiffs had tortiously injured it, or interfered with the defendant's beneficial enjoyment of it, although liable in tort for such conduct, no one, Ι think, will pretend that, in an action for the price, such tort

The Mayor, &c., of New York v. Mabie.

could be proved and the damages resulting from it be recouped. Yet the tort supposed, would have deprived the defendant, in one sense, of part of the consideration of his promise.

In judgment of law, the cause of action arising from the tort, in such a case, does not spring from the same contract or transaction, as the action upon the promise to pay the stipulated price. It does not spring from the same contract, for that contains no stipulation in respect to the conduct complained of.

In the case at bar, the liability of the plaintiffs to the defendant, upon the facts offered to be proved, would have been precisely the same, if the lease had been given to the defendant, by some other person. I think no case can be found, which allows a tenant to show a tort of the lessor, in bar of an action for the rent reserved, or to reduce the amount of the recovery, unless such tort amounts, in law, to an eviction. That a trespass upon, or tortious interference with, the demised premises, during the term, which merely renders the tenant's enjoyment less valuable, but which cannot be treated as an eviction, and which violates no covenant contained in the lease, cannot be set up as a partial failure of the covenant to pay a fixed rent, or by way of recoupment.

That such conduct on the part of the landlord, is to be redressed in the same way as if it had been the act of a stranger.

That Cram v. Dresser was decided in accordance with ad judged cases, and that no well considered case justifies us in extending the doctrine beyond the limits authorized by the previous decisions. (Reab v. McAllister, 8 Wend. 109; Baller man v. Pierce, 3 Hill, 171; Van Epps v. Harrison, 5 Hill, 63; King v. Paddock, 18 I. R. 141; Nichols v. Dusenbury, 2 Coms. 286; Harrington v. Snyder, 3 Barb. S. C. 281, 6 Barb. S. C. R. 386; Willoughby v. Coms., 3 Hill, 392; Bushell v. Lechmere, 1 L. Ray., 369.)

In this case the defendant, Mabie, received all the wharfage that actually accrued, during the whole term.

The motion for a new trial must be denied, and a judgment entered in favor of the plaintiffs upon the verdict.

The same judgment will be entered in the other action between the same parties.

Webb v. Goldsmith.

GEORGE WEBB, Respondent, v. HENRY GOLDSMITH and LEON GOLDSMITH, Appellants.

One R. K. C. held notes of the defendants, including the three notes in suit, which were payable to his order, amounting to nearly $3000, and they being unable to pay their creditors, he made a settlement with them, and accepted from them as a payment in full of all the notes so held by him, the note of a third person for $500, which was paid at maturity. R. K. C. then for a valua ble consideration endorsed the notes in suit without recourse to the plaintiff, who at the time of the endorsement had notice of the settlement with the defendants.

Held, that although the note of a third person so received by R. K. C. was for a much less sum than was then owing to him from the defendants, yet its accaptance by him as a payment in full, rendered the transaction valid as an accord and satisfaction, and that the plaintiff having notice of the facts was bound by the settlement.

Report of a referee in favor of the plaintiff set aside, and new trial ordered, (Before DUER, BOSWORTH, and Emmet, J.J.,)

October 27; November 19, 1853.

THIS action was brought by the plaintiff, as endorsee, against the defendants, as makers of three promissory notes, each payable to the order of R. K. Clark, each dated May 1, 1845, two of which were severally for the sum of $133, one at eight, and the other at ten months, and the third was for $135, and payable at twelve months.

The answer denied indebtedness on the notes, and averred that the defendants never received any consideration for either of the notes, either from the plaintiff or the payee, and alleged on information and belief, that plaintiff knew when he received the notes, that the plaintiffs were not indebted to Clark, and that the plaintiff paid Clark no consideration for them.

The reply put in issue the new matter contained in the answer, and also stated that the notes were received from Clark, in the course of business, for a valuable consideration, without notice of any equity or set-off against the same in favor of the makers.

The cause was referred to a referee. On the trial, it appeared that the notes were transferred by the payee to the

Webb v. Goldsmith.

plaintiff, on the 30th of April, 1846, without recourse, in satisfaction of notes held by the plaintiff against the payee, and with full notice that there had been previously a settlement of the notes, between the payee and the makers. The settlement between the payee and the makers took place on the 21st of July, 1845.

The payee then held the notes in suit, other notes made by the defendants, and also certain notes received from them, made by third persons. A receipt was given by Clark at the time of the settlement, the operative words of which are as follows:

"Received, New York, July 21st, 1845, from Henry Gold. smith, James M. Smith, Esq.'s note at sixty days, for five hundred dollars, in full for the following notes, leaving it to their honor to pay the balance should they ever become able." The receipt contained a description of the notes, and was signed "R. R. CLARK,"

The referee reported in favor of the plaintiff for the full amount of the notes. A motion was made for a new trial on the ground of newly discovered evidence. On the trial, it was doubtful whether any receipt or voucher was given at the time of the settlement. On affidavit of the discovery of it after the trial, a motion was made for a new trial, the motion was denied, with liberty to appeal from such order, and bring the appeal to argument, at the time of arguing an appeal from the judgment entered on the report of the referee. The appeals from the order and the judgment, were submitted on printed points,

P. J. Joachimsen, for the defendants and appellants,

The referee erred in his judgment,

I. The settlement with Clark, by which he took from the defendants a new security (viz. Mr. Smith's note), for the indebtedness of the defendants, including the notes in suit, was a complete satisfaction of all their indebtedness to him.

II. The notes in suit were extinguished, so that from the time of the settlement, Mr. Clark became a holder without

Webb v. Goldsmith.

consideration, and only a trustee for the defendants: he was bound, on demand, to surrender these notes to Messrs, Gold smith.

III. The plaintiff in this suit took these notes, with full and complete knowledge of the compromise; he is not, therefore, an innocent, or bona fide holder. He took them "without

recourse," exchanging Clark's liability to him for Goldsmith's liability, whatever it might be, to Clark; and the bar to Clark's recovering against these defendants, is equally a bar to the plaintiff.

IV. This is certainly so, to all intents and purposes, as to the two notes at eight and ten months' date, which the plaintiff took after maturity, He certainly is affected, as to those two notes, by the equities subsisting between Clark and the defen. dants. The judgment, therefore, ought to be reversed. The motion for a new trial ought to have been granted. The receipt of Mr. Clark is conclusive evidence of the compromise made by the defendants. This evidence was supposed (on the trial) not to exist. Argument cannot be needed to show its materiality; its non-production at the trial is fully accounted for in the affidavits used on the motion, and which remain wholly uncontradicted; and the motion was made at the earliest practicable period. There is no conflict of testimony in this case; its equity as regards the defendants is too transparent to require any comment. Relying upon that equity, and feeling assured that the whole case upon its merits, irrespective of technicalities or objections (none having been made before the referee), is fully before this just and impartial tribunal, the defendants are warranted in asking, that this court will so mould the case to conform to the facts proven, that we may be relieved from what undoubtedly will be an unjust recovery.

Slosson & Hutchins, for plaintiff, respondent,

I. The referee was correct in ruling that the answer did not deny the making of the notes upon which the action was brought. The answer simply denies that the defendants were indebted to the plaintiff, upon any promissory note or notes