169 N.E. 100 | NY | 1929
The owner of premises in New York city mortgaged them and shortly thereafter conveyed to defendant. Plaintiff, with knowledge of the existence of the mortgage, leased part of the building from defendant for a term of five years with the right to a renewal for *94 another five years. The lease contained a covenant for quiet enjoyment. Defendant, as long as he held title, paid the interest on the mortgage but, after conveyance to another to whom plaintiff paid rent for four months, the grantee defaulted. The mortgage was foreclosed and plaintiff was evicted. In this action for breach of the covenant, a verdict was directed against him and the judgment for defendant has been unanimously affirmed.
The lessor bound himself by solemn covenant that his lessee might "peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid." He promised that for five years, or, at plaintiff's election, for ten years, the tenant should be free from disturbance in his possession of the premises. His promise was not conditional upon his retention of title, nor upon the lessee's ignorance of the existence of the mortgage nor upon refusal to pay rent to the grantee. Without qualification the compact was made. Its obligation has not been fulfilled. Unless the weightiest reason be advanced whereby its breach may be condoned, the conclusion must follow that the agreement shall be enforced or a penalty paid for its violation. When the owner of real estate pledges that for ten years his tenant shall be free from eviction, he assumes a heavy burden. Yet, on the other hand, the tenant, if he were put at the mercy of one who fails to perform acts necessary for the protection which he has undertaken to provide, would be compelled to support a load even more oppressive. By a short term lease the owner may keep his liability within narrow bounds. He will not be allowed to secure the benefit of a long term lease with a short term liability. Merely because he divests himself of title he cannot be heard to cast off his responsibility. Respondent rejects the application of a rule of such straightforward simplicity and argues that, unless the covenantee proves the covenantor guilty of bad faith or unfair dealing either in the making or in the breach of the covenant and also *95 proves advance payment of rent, no damages may be recovered.
In Mack v. Patchin (
When a lessor covenants for quiet enjoyment, he is bound to take such measures in relation to the mortgage as will enable him to accomplish the purpose of his covenant. His promise survives his divestment of title. If he is at fault in failing to provide payment of interest on the mortgage, even after he has ceased to hold title to the premises, he must answer for his fault. His interest in the lease continues to the extent of his covenant and he will not be allowed to abandon the obligations which he has assumed. He is liable for the loss of the bargain. (Mack v.Patchin, supra; Friedland v. Myers, supra.)
The judgment should be reversed and a new trial granted, with costs to abide the event.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur.
Judgment reversed, etc. *97