Opinion
April, 1908.
Morris H. Beall, for appellant.
Frank C. Mebane, for respondent.
The plaintiff sued for an instalment of rent due under a lease. The defendant's answer recites a covenant of quiet enjoyment and alleges that plaintiff in violation of said covenant "let and rented other apartments in said premises and the same were used by the occupants thereof for immoral and illegal purposes, being the resort of bad characters, men and women." The answer further alleges that defendant notified plaintiff of such immoral and illegal use of said premises and requested plaintiff to institute the necessary proceedings to evict such disorderly occupants; and "that plaintiff unlawfully neglected to institute such proceedings or to cause said persons to be removed therefrom, but on the contrary suffered and permitted said tenants to continue to occupy a portion of said premises for immoral purposes;" and that, therefore, defendant was evicted. If the allegations set forth in the answer are true, the conduct of the plaintiff in thus permitting the disorderly tenants to remain in the premises has supplied the defendant with a good and sufficient defense. Dyett v. Pendleton, 8 Cow. 727.
The judgment must be reversed, with costs, and the demurrer overruled, with leave to the plaintiff to try his action upon the merits, upon payment of costs.
Present, GILDERSLEEVE, SEABURY and DAYTON, JJ.
Judgment reversed, with costs, and demurrer overruled, with leave to plaintiff to try his action upon the merits, upon payment of costs.