¶1 The action was to recover the rent reserved in the lease of an apartment in the city of New York. The defense was eviction. The claim of the defendant was that upon leaving his apartment before the expiration of the demised term he placed the porter of his store with his wife in the apartment as his servants to take care of the apartment on his behalf during his absence; that the plaintiff refused to allow the defendant’s servants to enter or occupy the apartment and that thereupon lie surrendered and abandoned the premises to the landlord.
¶2 The tenant of the apartment has necessarily as appurtenant thereto an easement of way in the common halls or passages which afford access to the apartment from the street. The unjustifiable refusal of the landlord to suffer the tenant to exercise this right of access would amount to an eviction, for it would destroy the enjoyment of the demised premises. The controverted question in the case is whether the action of the landlord was justified. • lie claims that the attempt of the defendant to place his porter in occupation of the premises was in violation of the terms of the lease and that he was entitled to prevent it. By virtue of the right to exclusive occupation which a tenant acquires by his lease he “ becomes entitled to use the premises, in the same manner as the owner might have done, except that he must do no act to the injury of the inheritance.” (Taylor on Landlord and Tenant, § 172.) This right may be limited or qualified by the terms of the lease, but it is not necessary for the tenant to show any particular provision of the instrument to justify his unlimited right of use and occupation; the, landlord who denies it must point *380 out the covenant which expressly restricts the tenant’s rights. The lease provides that the apartment shall be used as a private dwelling only. The defendant’s action in no way tended to violate this covenant. The lease contained the further covenant that the lessee would not assign or sublet the premises or any part thereof without the consent of the landlord under penalty of forfeiture. It is first to be observed that “ s.uch covenants are restraints which courts do not favor. They are construed with the utmost jealousy, and very easy modes have always been countenanced for defeating them.” (Riggs v. Pursell, 66 N. Y. 193; Taylor on Landlord and Tenant, § 403; McAdam on Landlord and Tenant, § 141.) Thus a covenant not to assign does not prevent an under-letting (Jackson v. Silvernail, 15 Johns. 277), and a covenant not to under-let the premises is not broken by a sub-lease of a part of the premises. (Roosevelt v. Hopkins, 33 N. Y. 81.) In this case it is not at all necessary to go to the extent of the authorities cited. It is clear that even under a liberal construction of the covenant, to constitute a violation of this lease the defendant must have attempted to put in possession of the premises a new tenant, not merely a new occupant. To be a tenant a person must have some estate, be it ever so little, such as that of a tenant at will or on sufferance. A person may be in occupation of real property simply as a servant or licensee of his master. In that case the possession is not changed ; it is always in the master. (Kerrains v. People, 60 N. Y. 221.) Therefore, if the defendant sought to place his porter in occupation of the premises as caretaker or as servant he was entirely within his rights. His testimony to this effect was not conclusive. There were circumstances from which the jury might have inferred that the suggestion of a caretaker was a subterfuge, and that the real intent was to make the porter a tenant of the premises. But in this respect the evidence presented a question of fact for the jury to pass upon. The court could not determine it as a matter of law. Indeed, the learned trial court seems not to have passed on this question, but to have disposed of the case on the ground that *381 placing the porter and his wife in his apartment, even as the defendant’s servants, was a violation of the lease. This view, as we have said, was erroneous.
¶3 The judgment should be reversed and a new trial ordered, costs to abide the event.
¶4 Gray, Bartlett and Martin, JJ., concur; Parker, Oh. J., Vann and Werner, JJ., dissent.
¶5 Judgment reversed, etc.