Conterno

The crucial question at the beginning of this ease was: Does the defendant have plaintiff’s consent for him to keep a dog on the leased premises ? By the time the judgment, from which defendant has appealed, was rendered, that question had lost all significance. Instead, the crucial question had become: Is defendant’s failure to pay rent from July 15, 1963, to February 1, 1964, excused by the fact that plaintiff had failed to keep a eotenant from making so much noise that defendant had in effect, been evicted? We are persuaded that the trial court’s negative answer to the *136 last question is supported by the venerable ease of Bilicke v. Janss (1910) 14 Cal.App. 342 [ 112 P. 201 ], and so the judgment should be affirmed.

The complaint, filed August 20, 1963,' .was .drawn "in. two counts: The first sought- to recover two month’s rent of $140 each. The second had as its objective an injunction putting a stop to defendant’s harboring a dog on the demised premises. Before the action came to trial the defendant had left the •premises, on August 23, 1963, taking his dog with him, and the need of an injunction disappeared with the dog. But the monthly rent continued to be unpaid, in…