dissent">O’Brien, J. (dissenting):

There being no formal pleadings, the rights, both legal and equitable, arising upon the stipulated facts may be considered and determined by the court. The lease contained a covenant that the defendant “ shall and may peaceably and quietly have, hold and enjoy the said demised premises .for the term aforesaid; ” and there was a further provision that if the conditions and covenants of the lease were - fulfilled by the "defendant, then the plaintiff was to . extend the term of the lease two years more. The city acquired title on February 3, 1897, pursuant to act of the Legislature. The lease and all the covenants then ceased and determined, because, pursuant to such act, the city became seized in fee simple absolute . of the lands for the purposes for which it had acquired the same. It became the duty, therefore, of the defendant either to vacate the ' premises or attorn to the. city. He elected to perform the latter duty by remaining in the. premises, and paying, as he did, the rent to the city from February third. Notwithstanding this it is insisted that the tenant should, in addition, pay the three months’ rent in advance, which was due February first, for the quarter ending May first, so that, if obliged to pay this amount also, it is clear that the tenant will have paid twice for the use of the premises from February third.

*506It is. -true that, in the award made by the commissioners,' the defendant received as damages for his leasehold interest the sum of $75'0. But this cannot be assumed to have been awarded because the tenant was obliged to pay that amount, but rather it is to be assumed that it was the value of the lease, as distinguished from the value of the use, the rule being that if the rent is less than the yearly value of the lease, compensation should be allowed in respect to the difference. (Wiggin v. The Mayor, 9 Paige, 16.) For to assume that the award of $750 was intended as compensation merely for the amount which the tenant had to pay on February first would be to conclude that the commissioners decided that he had no beneficial interest in the lease, although, as we have seen, he not only had the quarter ending May first, but was entitled to an additional term of two years. Had the defendant paid the rent on the first day of February in advance for the three succeeding months, it seems but right that he should have recovered back a proportionate part of such rent from February third, on the ground of failure of consideration or equitable set-off; and, therefore, not having paid it,, the plaintiff should not be allowed, because not equitably entitled to, that portion of the rent which accrued subsequently to February third. .

In support of the view that, if paid, a portion of it could be recovered back, we have the case of Noyes v. Anderson (1 Duer, 342), wherein the court allowed a recovery for so much of advance, rent paid as was proportioned to the part of the month during which the plaintiff was deprived of the use of the premises by the action of the city authorities in tearing down the building. The recovery * was allowed on the principle that to this extent there had been a failure of consideration, the lease having been given and taken in mutual expectation that the plaintiff would not be disturbed in the enjoyment of the premises by any action of the city. (See, also, Whitney v. Meyers, 1 Duer, 266.) And in Dyett v. Pendleton (8 Cow. 727) the Court of Errors quoted from Baron Gilbert in his. Essay on Rents (p. 145), as follows : “ A rent is something given by way of retribution to the lessor for the land demised by him to the tenant, and consequently the lessor’s title to the rent is founded upon this: that the land demised is enjoyed by the tenant during the term included in the contract; for the tenant can make no return for *507a thing he" has not. If, therefore, the tenant be deprived of the thing letten, the obligation to pay the rent ceases, because such obligation has its force only from the consideration which was the enjoyment of the thing demised.”

It is true that a contrary view seems to have been taken in the case of Giles v. Comstock (4 N. Y. 270); but that case I think is clearly distinguishable. There, before the quarter expired, a mortgage prior to the lease was foreclosed and the premises were sold, and the tenant attorned to and paid the rent to the purchaser. It was therein held that to render an eviction of a tenant a valid defense against the landlord’s claim for rent, it must take place before the rent falls due. The point of distinction between the two cases is, that there the lease was taken expressly subject to the mortgage, and it does not appear therein that there was any covenant, as in the lease here, for quiet enjoyment, or that, in violation of such' covenant, the tenant was evicted by .title paramount. In those two features I think this case is distinguishable from Giles v. Comstock, and it falls expressly within the principle of the cases above referred to, which support the proposition that, where one is evicted by a title paramount he should not be obliged to pay, or, if he has paid, that he should receive back a proportionate part of the rent for the term subsequent to eviction.

I think, therefore, that all the plaintiff was entitled to recover was what the defendant offered to allow, namely, $21.66, accrued rent to and including February third. For the reason stated, therefore, I dissent from the conclusion reached by my associates.

Judgment ordered for plaintiff for $750, interest and costs.

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