Fourth Department, November, 1911.

[Vol. 147. spoiled them; that the workmen ran over his field, taking most of his meadow; that there was a stone fence and the defendant took about six or seven feet from each side (as he says) of the fence for use in the house, letting the cattle run over the meadows. Other depredations were committed, but enough has been said to show the nature and extent of the lessee's deprivation of the use and enjoyment of the premises.

The lessee protested to the defendant against these acts, or some of them, but the protest was unheeded. The lessee says that there was unimproved land that could have been used for dumping the refuse, and that if the ditch had been made larger the meadow would not have been spoiled, and claims it was unnecessary to make footpaths, roads and a railroad through the middle of the farm; that it could have been done on the edge or over a part which would have been less disadvantageous in carrying on the farm and would reasonably answer the purpose of carrying on the quarrying operations.

While the lease permitted Carroll Brothers to use such portion of the farm as might from time to time be required for the purpose of carrying on the business of stone quarrying, and in substance exempted them collectively or individually from damage in blasting operations or from acts of their agents, servants or employees, that I think did not justify the defendant in doing or causing to be done more than was reasonably necessary to operate the quarry, and only such part of the premises could be used as was actually necessary for that purpose. Whether the defendant overstepped the bounds of such necessity and deprived the lessee of more land and interfered with its use by the lessee to a greater extent than he was entitled to under this provision was at least, I think, a question of fact. It does not clearly appear what the precise relation of defendant to Carroll Brothers was, but the evidence tends to show that he was in charge of the quarry operations and had control of the workmen, and the lessee testified that the specific acts appropriating different portions of the farm, to which I have called attention, were done by him.

The lessee remained in possession of the premises for two years April, 1906, to April, 1908. In January, 1908, he asked the defendant to reduce the rent fifty dollars, saying that

App. Div.]

Fourth Department, November, 1911.

he had taken so much land that he (lessee) could not make the rent. The defendant did not give the lessee an answer for several days, but finally told him to go if he could find a place where he could do better. The lessee found another place, and after that the defendant wrote him letters, the contents of which are not disclosed, but the tenant stated that it was too late, that he had another place, and moved off the farm in April, 1908, leaving the growing crop of wheat and rye.

In July following the lessee sent his son and daughter (the plaintiff) to harvest the wheat. When the son was on his way to cut the grain, defendant asked him when he was going to cut it, and the son stated that he was going to cut it then. Defendant stated that it ought to have been cut a week ago, that it was all lodging. The son went on and cut it, and defendant said nothing more and made no objection to the cutting. After the wheat and rye were cut the son and daughter shocked it up, and when it was ready to thresh the lessee went to thresh the wheat. The lessee had assigned the crop to his daughter, and when he arrived with the threshing machine the defendant asked him what he was going to do. The lessee stated that his daughter had sent him over to thresh the wheat. Defendant replied that he would have to put the wheat in the barn and thresh it there. The lessee answered no, that he could thresh the wheat where he pleased. Then defendant said that he had got to settle first. The lessee replied that he would settle; that when the defendant paid the damages to the land he would pay the rent. The lessee had about eight bags threshed, and the defendant took that away from him and refused to let him have that or any of the grain. The claim now is that upon the undisputed testimony the plaintiff is not entitled to recover; that he having abandoned the premises without paying the rent lost his right to the grain. I think we should not so hold as a matter of law. I think the evidence is sufficient to show that there was an eviction from a substantial part of the premises, and, if so, the payment of the rent was suspended. (Christopher v. Austin, 11 N. Y. 216; Peck v. Hiler, 24 Barb. 178; Matter of Hall v. Irvin, 78 App. Div. 107; Sully v. Schmitt, 147 N. Y. 248.) In any event, if there was a partial eviction, he was entitled to an

Fourth Department, November, 1911.

[Vol. 147. abatement of the rent accordingly. (Blair v. Claxton, 18 N. Y. 529.) Even in summary proceedings to recover possession of demised premises, any new matter constituting a legal or equitable defense or counterclaim may now be set up. (Code Civ. Proc. § 2244.) And if the lessee's claim equaled or exceeded the amount of the rent unpaid, that would be a complete answer to the claim for rent. Asking for a reduction of the rent in January and remaining in possession until April, the end of the year, when the last installment of rent became due, is not, as it seems to me, necessarily inconsistent with the claim of an eviction. The condition of the premises remained the same as theretofore. The lessee was still deprived, as the proof tends to show, of a substantial part of the use and enjoyment of the premises, and I think it cannot be said that the reduction in the rent which he asked was at all out of proportion to the deprivation and curtailment in his use of the premises. Nor do I think he was required under such circumstances to remain upon the premises in order to save to himself his crops of rye and wheat.

Furthermore, irrespective of the question of eviction, I think the circumstances under which the lessee gave up possession of the premises are quite consistent with the claim that he was to have the growing crops of wheat and rye. He had complained to the defendant from time to time that his rights had been invaded, that so much land had been taken away from him that he could not make the rent and, therefore, asked for a reduction. So far as the record discloses, the defendant permitted him to go without even asking him for the rent. The defendant consented to the lessee cutting and shocking the grain and never made any claim thereto until a part of it was threshed. I think under such circumstances, whether there was an eviction or not, it can well be found that the defendant is estopped from now claiming that the crop belongs to him. (Duffus v. Bangs, 122 N. Y. 423; Bernheimer v. Adams, 70 App. Div. 114; affd., 175 N. Y. 472.)

I think the judgment should be reversed and a new trial granted.

Judgment affirmed, with costs.

App. Div.]

Fourth Department, November, 1911.

DENNIS P. DUNN, Respondent, v. EMPIRE ENGINEERING
CORPORATION, Appellant.

Fourth Department, November 15, 1911.

Negligence - obstruction of towpath by contractor - injury to animals -facts justifying recovery-liability of contractor building State canal.

Action against a contractor constructing a portion of the State canal to recover for injuries caused to mules used for towing by a navigator on the canal owing to the fact that in the night time they became mired in deep mud left upon the towpath by the defendant, who had failed to give warning of the dangerous condition by lights or signals. Evidence examined, and held, sufficient to warrant the jury in finding the defendant guilty of negligence and the plaintiff free from contributory negligence.

Where the contract with the State provided that the work should be done so as not to interfere with the navigation of the canal, the defendant, being an independent contractor, cannot claim exemption from its negligent acts because no liability exists against the State or any of its officers or agents. The liability exists independent of any agreement by the contractor to indemnify and save the State harmless from claims against it.

APPEAL by the defendant, the Empire Engineering Corporation, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Oneida on the 14th day of March, 1911, upon the verdict of a jury for $400, and also from an order entered in said clerk's office on the 17th day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.

G. D. Judson, for the appellant.

Jerry F. Connor, for the respondent.

KRUSE, J.:

The plaintiff, a navigator of the canals, was towing two boats with a team consisting of two mules and one horse. The animals were mired in the mud placed or permitted to run upon the towpath, through the carelessness of the defendant, as the plaintiff contends. The animals were injured so that one died and the other two are not as good as they were before they were injured.

Fourth Department, November, 1911.

[Vol. 147.

No claim is made that the verdict is excessive, but the defendant contends that the plaintiff failed to show that he or his driver was free from contributory negligence or that the defendant was negligent; and furthermore that even if the defendant was negligent, no liability exists against it for reasons which will be stated presently.

The defendant had a contract for doing canal work. It was engaged in doing that work near Adams Basin, Monroe county. The towpath was from twelve to thirteen feet wide — some say sixteen to eighteen feet - located on the north side of the canal. On the north side of the towpath was the State spoil land and to the north of that was a highway. The spoil ground sloped toward the highway. A fence or barrier was placed between the highway and the north side of the spoil ground, thus forming a pocket, the bottom of which sloped away from the north side of the towpath, to the depth of six or eight feet below the level of the towpath. Into this pocket the defendant put the mud and soft material excavated from the canal, making a pile of spoil somewhat higher than the level of the towpath. There was no barrier between the spoil land and the towpath. It was not contemplated that the mud and soft material should be put upon the towpath, but upon the spoil ground, and the defendant contends that none of the material was placed upon the towpath by it. The plaintiff contends otherwise, claiming that the defendant either placed it upon the towpath or that the spoil was piled so high and the mud was so soft that without being held in place by a barrier or otherwise it naturally would and did run upon the towpath.

The contract between the defendant and the State provided that the work should be done so as not to interfere with the navigation of the canal. The evidence tends to show that the entire towpath for quite a distance was covered to within six feet of the canal bank with mud fifteen or twenty inches deep, and there were holes in the towpath besides; that the plaintiff and his driver were unaware of the condition, and after the animals were driven into the mud they floundered and finally turned to the right, where the mud was still deeper, so that it became necessary to pull them out, and they were injured.

The accident occurred on Sunday night, August 15, 1909,