THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. I concur with the view of the learned counsel for the appellant that the additional work put upon the cellar bottom of the Mains house by the plaintiff at the request of the defendant, after the conversion above detailed, did not constitute a sufficient consideration for the promise of the defendant upon which the action was brought. The plaintiff contracted to do mason work to the entire satisfaction of the owner. It appeared that Mains was not satisfied, and it was not shown that his objection to the work was unreasonable. Hence, the plaintiff failed to show that, in performing the additional work on the cellar bottom, at the request of the defendant, he did what he was not legally compelled to do. I think, however, that the omission of the plaintiff to file a notice of lien at the request of defendant's agent, and upon the promise of the latter to pay the balance due the former, afforded a sufficient consideration for the promise. It was said by COMSTOCK, J., in Mallory v. Gillett (21 N. Y. 412-414), where a creditor released a lien he had on a canal boat at the request and upon the promise of the defendant to pay the amount of the plaintiff's claim, "the consideration was perfect." Here the plaintiff waived his right to file a lien at the request of the defendant and relying on his promise. There was a sufficient consideration for the promise. But, as held in the case cited, it requires something more than a sufficient consideration to support a promise to answer for the subsisting debt of another in order to take the case out of the operation of the Statute of Frauds. It requires a new consideration beneficial the promisor. Where there is such a new consideration beneficial to the promisor, the Statute of Frauds will not apply. Thus, in White v. Rintoul (108 N. Y. 222), it was held as follows: "It seems, a promise to pay a debt of another antecedently contracted, where the primary debt still subsists, is original, and so valid within the statute of frauds, although not in writing, when it is founded on a new consideration moving to the promisor and beneficial to him, and when by the promise he comes under an independent duty of paying, irrespective of the liability of the principal debtor." (See, also, Mallory v. Gillett, supra; Ackley v. Parmenter, 98 N. Y. 425; Raabe v. Squier, 148 id. 81; Robinson v. Springfield Iron Co., 39 Hun, 634.) At the time when the promise of the defendant was made, on App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. which the plaintiff seeks to maintain this action, the latter was entitled to file a notice of lien which would have secured the payment of his claim. He omitted to do so at the request of the defendant and on the promise of the latter to pay the balance due him. The defendant at the time was responsible to Mains for the completion of the house by Brundage according to the terms of the contract. He also had an assignment of the interest of Brundage in the contract with Mains, and was entitled to receive the balance due from the latter to the former; and after the promise counted on by the plaintiff, did receive $1,100, the amount of such balance. If the plaintiff had filed a notice of lien, Mains would have been entitled to deduct the amount thereof from the sum to be paid the defendant. In consequence of plaintiff's omitting to file a lien, the defendant received from Mains seventy dollars and ninety cents more than he would had the lien been perfected. Hence, the defendant was directly benefited by the omission to file a notice of lien, induced by his promise. It follows that there was a new consideration for the promise of the defendant on which the plaintiff relies, viz., the omission of the latter, at the request of the former, to perfect a lien by which the plaintiff could have secured the payment of his claim. This consideration was one moving to the promisor and beneficial to him. Therefore, the promise of the defendant to pay the debt due from Brundage to the plaintiff, although the primary debt still subsisted, was original and valid within the Statute of Frauds. By the promise, under the circumstances, the defendant came under an independent duty to the plaintiff's claim, although the liability of Brundage continued. (White v. Rintoul, supra.) pay In this view of the case, it is unnecessary to consider whether or not the verbal release of Brundage by the plaintiff was valid. The contract, under which plaintiff claimed, was a new agreement founded upon a new consideration beneficial to the defendant, and under which he became obligated to pay the balance due the plaintiff, although the liability of Brundage continued. The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs. THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. J. TOWNSEND LANSING, as Trustee Under the Will of CHARLES B. LANSING, Deceased, and JAMES R. TURNER, Respondents, v. WILLIAM THOMPSON, Appellant. Landlord and tenant — action for rent — answer that the premises became untenantable because the water pipes burst - -construction of chapter 345, Laws 1860 -a surrender necessary—consideration of a promise to pay the tenant for remaining on the premises — of a promise to release rent, on a surrender and a payment of a certain вит. An answer, interposed in an action brought to recover for the rent of a hotel, alleging that the demised premises became untenantable, because the water pipes of the hotel burst and the water supply failed, but not alleging that the landlord had covenanted to make repairs to the demised premises, does not present a defense. The provisions of chapter 345 of the Laws of 1860, relieving a tenant from the payment of the rent of a building, which, without fault or negligence upon his part, shall have been destroyed or so injured by the elements or other cause as to be untenantable, have reference to a destruction or injury resulting from some sudden and unexpected action of the elements, or other cause, and not to gradual deterioration and decay, produced by the ordinary action of the elements. A tenant, even in a case coming within the statute, is not discharged from his obligation to pay rent, unless he surrenders up the possession of the demised premises. A counterclaim in an action brought to recover rent, alleging that, after the demised premises had become untenantable, the landlord had promised the tenant a certain sum of money if he would remain in possession thereof, must also state facts establishing the tenant's right to vacate the premises, and what valid considerations existed to sustain the promise of the landlord. A separate defense to an action for rent, which alleges a new agreement under which the landlord agreed to release the tenant from the rent already due and payable, provided that he surrendered the premises and paid the landlord a certain sum, coupled with an allegation that the tenant had surrendered the premises, and had offered to pay the landlord a part of the sum, is insufficient as a defense, because the tenant fails to show that he has performed his part of the new agreement. APPEAL by the defendant, William Thompson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 4th day of October, 1895, upon the decision of the court, rendered after a trial at the Columbia Special Term, sustaining the plaintiffs' demurrer App. Div.] THIRD DEPARTMENT, JULY TERM, 1896. to the defendant's answer, with notice of an intention to bring up for review upon such appeal the interlocutory judgment entered upon such decision in the Albany county clerk's office. Claude B. Mayham, for the appellant. John Dewitt Peltz, for the respondents. PUTNAM, J.: This action was brought to recover a quarter's rent claimed to be due on the 1st of February, 1895, on a lease executed by the plaintiffs to the defendant, by which they rented the premises therein described, for the period of three years from the 1st day of May, 1893. A demurrer was interposed to the several defenses set up in the answer, and sustained by the court below. The defendant in the answer admitted the execution of the lease. In the second, third, fourth and fifth subdivisions thereof he alleged, in substance, that the premises a hotel in the city of Albanybefore the quarter's rent sought to be recovered was payable, became untenantable on account of the failure of the water supply and the bursting of the water and sewer pipes, for which the defendant was not responsible; and that the defendant was thereby deprived of water for the use of the kitchen, bar room and water closets; that he requested the plaintiffs to repair the same, but the latter neglected to do so, and that thus the defendant was deprived of the beneficial enjoyment of said premises, which became untenantable; that his liability to pay rent thereupon ceased, and he suffered damages to the amount of $1,000, which he set up as a counterclaim. I think the court below was right in sustaining the demurrer to the portions of the answer above referred to, whether considered as one defense or as separate defenses. There was no allegation of any covenant on the part of the landlords, in the lease, to make repairs; and in the absence of such an agreement, there was no liability on their part because the demised premises became out of repair. Again, the allegations in the answer do not show such a state of facts as relieved the tenant from the payment of rent under the provisions of chapter 345 of the Laws of 1860. It was held in Suydam et al. v. Jackson (54 N. Y. 450) that "The provisions of the act in reference to the rights and liabilities of lessors and lessees THIRD DEPARTMENT, JULY TERM, 1896. [Vol. 8. (Chap. 345, Laws of 1860), relieving a tenant from the payment of rent of a building which, without fault or negligence upon his part, shall have been destroyed or so injured by the elements or other cause as to be untenantable, have reference to a destruction or injury resulting from sudden and unexpected action of the elements or other cause, and not to the gradual deterioration and decay produced by the ordinary action of the elements." The answer does not show that the bursting of the pipes therein referred to was not due to gradual decay, or aver that such bursting was to be attributed to any sudden or unexpected action of the elements. Again, it has been determined that if demised premises become untenantable, a tenant who desires to avail himself of the act of 1860 must move out and surrender the possession of such premises. He cannot retain possession and at the same time refuse to pay the rent. (Johnson et al. v. Oppenheim et al., 55 N. Y. 280.) In those portions of the answer referred to there was no allegation that the defendant had quit and surrendered the possession of the hotel in consequence of the premises being untenantable. The defendant, in the sixth paragraph of his answer, sets up a separate defense. He avers "that after the demised premises had become untenantable as aforesaid, and after the defendant had notified the plaintiffs of the condition of the same, and informed them that he could not occupy them by reason thereof, the plaintiffs offered and promised to pay the defendant at the rate of two hundred dollars per month for each and every month that he would remain in and upon the same until repaired or let to another tenant, and the defendant remained in and upon said premises under such agreement about four months, for which the plaintiffs became indebted to the defendant in the sum of six hundred dollars, which the defendant sets up by way of counterclaim against the claim of the plaintiffs in this action." The defendant thus sets up as a counterclaim, a new contract alleged to have been made with the plaintiffs after the premises became untenantable, under which he claims that the plaintiffs became indebted to him in the sum of $600. It is clear that, ordinarily, the promise of a landlord to his tenant to pay him for remaining in the demised premises would be without consideration and void. The question arises whether any sufficient consideration was stated |