to be accelerated by a default in the interest; and it then states the execution of the mortgage on the same day "as collateral security for the payment of such indebtedness," and that it contained the same condition as the one in the bond. As the plaintiff was only bound to state the legal effect of his securities, leaving it to the defendant, if he questions the accuracy of the statement, to set them out or to deny the deeds, his pleading is not to be understood as averring that the mortgage contained a condition in the same language with that embraced in the bond. The complaint would be proved in substance if it should appear that the mortgage contained a reference to the bond in the usual form, "according to the condition of a certain bond, bearing even date with the mortgage." Such reference would be sufficient to make the mortgage payable upon the same conditions, in all respects, with the bond; and it might, then, properly be said that the mortgage was upon the same condition as the bond. A mortgage is always collateral to the debt attempted to be secured, and when it refers to the instrument which is the principal security, the two instruments are to be taken together, and form but one security. Now to say, as this answer does, that the mortgage does not contain any condition, agreement or clause, in the terms stated in the averment in the complaint where it sets out the conditions of the bond, does not meet the substance of the allegation that the mortgage has the same condition as the bond. It simply pleads the existence of certain language, without denying the substance of the contract as set out in the complaint, and without setting out the contract itself, so that the court may see what it is. It may well be that nothing is said, in terms, in the mortgage, as to the effect of the non-payment of interest; and yet it may refer to the bond in such a manner as to adopt its provisions. It is not stated, either in the complaint or the answer, that there was any covenant in the mortgage for the payment of the debt. Assuming that there is no such covenant, the bond is the only personal obligation. The object of the mortgage is to reinforce that obligation; and a reference in the mortgage to the paper containing such obligation, makes the bond a part of the mortgage for all essential purposes. The answer, to present a bar to a foreclosure should, at least, have shown that there was nothing on the face of the mortgage to connect it with the bond.

I conceive that the recording laws have nothing to do with.

the case. The defendant purchased with a full knowledge of the plaintiff's mortgage, and subject to it. The existence or effect of constructive notice, arising out of the record, is immaterial to the case. The defendant, by his purchase, undertook to pay off the mortgage, according to its terms. If the mortgage referred to the bond, and the answer does not deny that it did, he had notice of that instrument and was bound to make himself acquainted with its provisions. I am of opinion that the answer is insufficient.

The judgment of the Supreme Court should therefore be reversed and judgment should be given for the plaintiff.

Judgment reversed.

FULLER v. MANHATTAN CONST. CO.

88 N. Y. S., 1049. [1904.]

SCOTT, J. The complaint alleges the incorporation of the plaintiff and defendant; that plaintiff was the lessee of a certain building; that on May 23, 1903, the plaintiff leased to the defendant two rooms in said building for a period of 11 months, ending May 1, 1904; that the rent for the months of November and December, 1903, and January, February, and March, 1904, became due and were demanded, but plaintiff has refused to pay the same. The answer denies on information and belief the incorporation of plaintiff; and that it was lessee of the building, and denies the allegations of paragraphs 7, 8, and 9, of the complaint, being the allegations respecting the rent for the months of January, February, and March, 1904. It then sets forth, as a separate defense, that the rent for November and December became due and was unpaid, and that the plaintiff harassed and annoyed the defendant by threats and intimidation, and that when, in March, 1904, defendant decided to leave said rooms plaintiff prevented it from removing its effects therefrom. For a third defense, and by way of counter-claim, the defendant reaffirms the allegations of its second defense, and demands damages therefor. The plaintiff demurred to the whole answer as insufficient in law upon the face thereof, and separately

demurred to the counter-claim as not stating facts sufficient to constitute a cause of action. The demurrer was overruled.

The whole theory of the defense and counter-claim is based upon the erroneous apprehension that the covenant of quiet enjoyment in a lease is broken, simply because the landlord in some way annoys the tenant in the possession and enjoyment of the demised premises. Such is not the law. To constitute a breach of the covenant, there must be an actual or constructive eviction, and there cannot be deemed to have been a constructive eviction without a surrender of the premises. And to constitute a defense to an action for rent, the eviction must take place before the rent becomes due. Gugel v. Isaacs, 21 App. Div., 504, 48 N. Y. Supp., 594. In the present case the defendant did not attempt to leave before March 15th, and the rent for March, by the terms of the lease, became due on the first of the month. So, even if the defendant should claim that the acts of the landlord amounted to a constructive eviction, and that they were about to surrender possession in consequence thereof on March 15, these facts, if sustained, would be no defense to an action for the March rent. The facts stated in the second defense do not, therefore, constitute a sufficient defense to the action for rent. Nor are they sufficient to sustain a counter-claim. The acts of the landlord, if established, are not a violation of the contract of leasing, but amount to a tort, if anything, and damages therefor may not be counter-claimed in an action upon a contract of lease. It is clear, therefore, that the facts alleged in the second defense are insufficient, and that the demurrer to the counterclaim should have been sustained.

The demurrer for insufficiency, being to the whole answer, was properly overruled if there is an issue raised by any of the denials or allegations. The defendant relies upon its denials. These are three in number, but unless they are denials of material allegations of the complaint, or serve to put in issue some fact alleged in the complaint which the plaintiff must prove in order to recover, and which the defendant may disprove, they raise no issue, and are unavailing. The denial, on information and belief of plaintiff's incorporation, raises no issue. The like denial that the plaintiff is the lessee of the building in which defendant rented offices, likewise raises no issue, because the tenant cannot question his landlord's title to the demised premises.

The denial of the allegations respecting the nonpayment of the rent for January, February, and March also raises no issue, when taken in conjunction with the circumstances that the lease is admitted by a lack of denial. That the rent became due and payable is a conclusion of law, and not of fact, and is not put in issue by the denial. Whether it was demanded or not is immaterial, and the denial of a demand is not, therefore, the denial of a material fact. The general denial of all allegations, including the allegation of nonpayment, is not sufficient to permit proof of payment, which must be pleaded in order to be proved. It follows that none of the denials are sufficient to relieve the answer of the charge of insufficiency.

Judgment reversed, and demurrer sustained, with costs in this court and the court below, with leave to defendant to amend its answer within 20 days upon payment of costs.

MARSHALL v. THE THAMES FIRE INS. CO.

43 Mo., 586. [1869.]

WAGNER, Judge, delivered the opinion of the court. Notwithstanding the voluminous record in this case, the real matter in controversy may be compressed within a very small compass. The issues framed by the parties made the result turn purely on questions of fact, and if there was no misdirection by the court, or error in its rulings, the finding of the jury cannot be disturbed. The petition alleged that by the policy of insurance, the boat was valued at one hundred and sixty thousand dollars, and that at the time of its loss or destruction by fire, it was of the value of one hundred and twenty-five thousand dollars, and more than all insurance thereon. The defendant, in its answer, did not controvert this allegation, but averred as matter of defense, that the burning of the said steamboat Magnolia, the boat described in the petition, was occasioned, caused, and brought about by the direct agency, procurement, contrivance, and direction of Marshall and Kilpatrick, the plaintiffs. The whole defense was distinctly staked upon that issue, giving the defend

ant the affirmative; and all material allegations in the petition, which were well pleaded, stood admitted. The question of pleading is of essential importance in view of the instruction of the court, which will presently be adverted to. It may not be easy to define on all occasions, what are material averments in a petition. An immaterial averment need not be denied, but a material one must be, else it will be taken as confessed. The practice act requires that the plaintiff shall make in his petition a plain and concise statement of the facts constituting his cause of action; and when issue is intended to be joined upon these facts, the answer of the defendant must contain a special denial of each material allegation. Under the common law system of pleading, if the joinder was on an immaterial issue, the court would award a repleader.

The allegation that the boat was worth one hundred and twenty-five thousand dollars was immaterial, and required no denial. But is the same true of the further averment that she was worth more than all the insurance thereon." The statement was of consequence, because there was other insurance on the boat besides the policy of the defendant, and it became necessary to show the relation which the value of the boat bore to the amount of insurance. For if the amount of insurance was greater than the value, the plaintiffs could only recover in the proportion that the value bore to the boat. The instruction complained of told the jury "that it stands admitted by the pleadings in the case that the value of the steamboat Magnolia, at the time of the fire which destroyed her, was greater than the whole amount for which she was insured."

I have no doubt about the correctness of the instruction. The allegation was, in substance, that the boat was worth more than the whole amount for which she was insured; and had here been a denial interposed-if the plaintiffs had not proved the truth of the statement, or it had been proved to be untrue-no recovery could have followed, except for the proportional part which they might have shown themselves entitled to.

Judgment affirmed.