82 N.Y.S. 891 | N.Y. App. Div. | 1903
The demurrers interposed herein state as the grounds thereof that the second cause of action set forth in the complaint does not state facts sufficient to constitute a cause of action.
The complaint sets forth two causes of action: First to recover rent of the demised premises for the months of February and March, 1901. The cause of action as therein stated avers the existence of the lease, the accruing of the rent and the non-payment thereof. The second cause of action sets forth a covenant contained in the lease, providing as follows: “ And the said lessee hereby agrees to pay the said yearly rent as above stipulated, without any deduction, fraud or delay; it being understood that in case of non-payment of the rent at the times and in the manner above provided, or if default shall be made in any covenants or agreements herein contained, the said lessor and the lessor’s legal representatives shall have the right to enter the said premises, either by process of law or otherwise, and to relet said premises as agent of the said lessee and to receive the rent therefor, applying the same to the payment of the rent due by these presents and holding the lessee and the lessee’s legal representatives liable for any deficiency for any damage that may be caused by or through such entry or reletting.”
The complaint then avers that in the month of March, 1901, the plaintiff in accordance with the statute dispossessed the defendants for the non-payment of rent of the premises for the month of February, 1901; that plaintiff thereupon re-entered upon and sought to lease the same on behalf of the defendants, as in the lease was provided; that plaintiff was wholly unable to obtain a tenant for the premises for any part of the said year which elapsed after defendants were dispossessed and until the 1st "day of February,
It is to this cause of action that the demurrers are interposed. It appears that the term for which the premises were leased expired on the 1st day of February, 1901, and- that the defendants thereafter held over in the occupation of the same until they were dispossessed, thereby electing to continue the use of the premises in accordance with the terms of the lease. It is claimed by the defendants that the covenant to answer for the deficiency of rent in the event of a re-entry did not survive the expiration of the term provided for in the written lease. We are not able to reconcile this claim with the rule of law which obtains where there is a holding, over by • the tenant after the expiration of the term demised by a written lease. The relation of the parties under such circumstances has been the subject of repeated adjudication. In the leading-case of Schuyler v. Smith (51 N. Y. 309) Judge Eakl, in writing for the Commission of Appeals, .said, in- respect of a tenant’s holding over .: “ The owner of the premises may treat him as a trespasser or as a tenant for another year upon the terms of the prior lease-so far as applicable.” The court subsequently reviews many cases and approves • of their doctrine, in which the rule is laid down, without qualification, that where a tenant holds over after the expiration of his term, without any express agreement, but with the assent of the landlord, the law will imply that he holds the ■ premises upon the same terms as was his previous holding, and such view has been generally adopted. (Frost v. Akron Iron Co., 1 App. Div. 449 ; Farrell v. Manhattan Ry. Co., 43 id. 143 ; Laughran v. Smith, 75 N. Y. 205.) The limitation applied by-the language, “ so far. as applicable,” manifestly can have no application in the absence of proof showing a changed condition of affairs which would naturally or of necessity operate to modify the relations existing between the parties.1 In, the absence of any proof upon- the subject-there-can be no .reason for holding that the relations of the parties have changed, as nothing has occurred to break the continuity of the holding,- or
The further question presented by the demurrer is, did the independent covenants averred in the complaint survive the re-entry of the landlord under the summary proceedings by which the -tenant was dispossessed? It is evident that the covenant itself could not come into operation until there was a breach of its conditions. Its purpose was to provide a remedy in favor of the landlord, should
If we are right in our construction of this covenant, that a re-entry was authorized by summary proceedings, then it is plain that the covenant to pay deficiency in rent accruing after such re-entry survives, and furnished to the plaintiff an independent cause of action for the amount of such deficiency. Such being the case, it follows that the demurrers were properly overruled.
The interlocutory judgment should, therefore, be affirmed, with costs, with leave to the defendants to withdraw demurrers and to
Patterson, O’Brien, McLaughlin and Laughlin, JJ„ concurred.
Judgment affirmed, with costsj with leave to defendants to withdraw demurrers and answer on payment of costs' in' this court and in the court below.