O'Brien v. Brietenbach — 1 Hilt. 304

Majority

p. 304

Bridget O’Brien v. Samuel Brietenbach.

Headnote

In an action by lessee against lessor to recover damages for refusal to givo possession of the demised premises, it is no defence that tlie plaintiffliired the premises intending!» keep a house of prostitution therein.

The mere avowal of an intent of the lessee to employ the leased property in tho W prosecution of an unlawful business does not constitute an offence, nor does it ou- * title the lessor to repudiate his contract.

Appeal from an order at special term, striking out a part of defendant’s answer as irrelevant.

This action was brought to recover damages for defendant’s alleged refusal to give plaintiff possession of a portion of premises at No. 245 Canal street, in the city of New York, leased to plaintiff by the defendant.

Tho answer contained a paragraph as follows: “ And the defendant, for a distinct and separate answer, says, that if tho plaintiff hired any rooms of the defendant at No. 245 Canal street, she hired the same with the intent and moaning at the time of hiring, and over since so intending, to keep therein a common and public house of prostitution.”

The plaintiff moved to strike this paragraph from the answer, as irrelevant. The motion was granted, and the defendant appealed.

A. L. Pinney, for the appellant.

O. P. Johnston, for the respondent.

The matter objected to was properly stricken from the answer. The intention of tho plaintiff, publicly avowed, to keep a bawdy house, was no reason why she should be pro

p. 305

hibited from occupying the premises rented. The defendant, her landlord, was not privy to any such intent or arrangement, and it therefore formed no part of the contract. The contract itself was not contra bonos mores, and although the plaintiff may have intended, a violation of law by keeping a bawdy house, the. mere intent itself neither constituted an offence nor gave to the defendant a right to repudiate his contract for that reason. If, after taking possession, she was guilty of the acts contemplated, the statute against disorderly houses would protect the defendant and remedy the evil.

Order appealed from affirmed.