117 N.E. 579 | NY | 1917
The action is for rent. The plaintiff leased to the defendant's testator part of the first floor and basement of the Fifth Avenue Building in the city of New York. By the terms of the lease, the basement included a vault beneath the sidewalk. This vault was in fact maintained under a revocable license from the city of New York. During the term of the lease, the city revoked the license, and excluded the tenant, at first from the whole vault, and later from part of it. The rent in suit accrued during the period of exclusion. The defense is a partial eviction with a demand that the rent abate in proportion to the diminished rental value. The lease contains no express covenant for quiet enjoyment. The landlord insists that in the absence of such a covenant, eviction is no defense. We do not share that view.
Eviction as a defense to a claim for rent does not depend upon a covenant for quiet enjoyment, either express or implied. It suspends the obligation of payment either in whole or in part, because it involves a failure of the consideration for which rent is paid (Royce v. Guggenheim, *373
The landlord is also in error in its contention that the implication of a covenant for quiet enjoyment is now prohibited by law. At the date of this lease, the Real Property Law of 1896 (L. 1896, ch. 547) was in force. By section 216 (now section 251; Cons. Laws, ch. 50), "a covenant is not implied in a conveyance of real property, whether the conveyance contains any special covenant or not." This provision is a re-enactment with immaterial verbal changes of a provision of the Revised Statutes (1 R.S. 738, sec. 140). The Statutory Revision Commission state in their notes that the section is unchanged in substance. It is settled law that the corresponding section of the Revised Statutes was not applicable to leases which created estates for years (Mayor, etc., of N.Y. v. Mabie,
We do not think that this transposition of sections has effected a change of meaning (Fowler Real Prop. L. sec. 251, note). The Revised Statutes distinguished sharply between conveyances of real estate and conveyances of interests in real estate. We find the distinction emphasized in the very sections from which the present definition of conveyances has been borrowed (2 R.S. 137, secs. 6, 7): "lands" were coextensive in meaning with "lands, tenements and hereditaments;" "estates and interests in lands" might embrace a chattel real. The same distinction is preserved to-day (Real Prop. Law of 1896, secs. 2 and 205; Real Prop. Law of 1909, secs. 2 and 240). When this distinction is kept in mind, the meaning of the statute is no longer doubtful. The prohibition of implied covenants is still applicable, not to conveyances generally, nor to conveyances of "interests in real property," but solely to conveyances of real property, i.e., of lands, tenements and hereditaments. If the purpose had been to extend the prohibition to implied covenants in leases, it would have been very easy to say so in terms too clear for misconstruction. The re-enactment of the old section was an adoption of the meaning which it had acquired by judicial construction for more than half a century (Davis v. Davis,
Any other conclusion would lead indeed to strange anomalies. A covenant for quiet enjoyment will be implied in oral leases. It results from the mere relation of the parties (Markham v.Paget, 1908, 1 Ch. 697; Budd-Scott v. Daniell, 1902, 2 K.B. 351; Dexter v. Manley, 4 Cush. 14; Rawle Covenants of Title, sec. 274). But the statutory definition of conveyances is limited to instruments in writing (Real Prop. L. sec. 205, now sec. 240). The landlord, therefore, would have us hold that the covenant is implied when the lease is oral and rejected when the lease is written. Such a distinction, if it is to be made, must rest upon a clearer manifestation of the legislature's purpose.
One other argument in support of the landlord's claim remains to be considered. The tenant, it is said, was chargeable with knowledge that the landlord's occupation of the highway was by force of a revocable license (Deshong v. City of N.Y.,
In thus holding, we place the incidence of loss where justice requires it to fall. Without warning the tenant of the chance of revocation, the landlord undertook to make a lease which should continue for a fixed term. We will not whittle down the consequences that normally attach to such a letting by nice assumptions of constructive notice. The tenant had the right to take the landlord at his word. Whether the paramount title be public or private, the consequence of ouster is a suspension of the rent.
The order should be affirmed with costs, and the questions certified answered in the affirmative.
HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, McLAUGHLIN and CRANE, JJ., concur.
Order affirmed. *378