New v. Liebeherr

SEABURY, J.

The plaintiff sued to recover rent due under a lease-on iSeptember 1, 1909. The defendant pleaded eviction. The acts • which are alleged to have constituted an eviction occurred subsequent to the time when the rent sued for was due.

The rule is well settled that, to bar an action for rent, the eviction •must take place before the rent becomes due. Giles v. Comstock, 4 N. Y. 270, 53 Am. Dec. 374. In Giles v. Comstock, supra, the court •said:

“The doctrine everywhere running through the books is that, to render eviction from the premises a valid defense, it must have taken place before the rent became due.”

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.