15 Wend. 464 | N.Y. Sup. Ct. | 1836
By the Court,
The special pleas are bad. The declaration contains but a single count, alleging as a breach of the covenant, the non-payment of one half year’s rent, due on the first day of May, 1832. The first special plea, in its commencement, professes to answer the whole cause of action, and then sets up in the body of it matters going only in bar of a recovery of one quarter’s rent, ending the first day of February, 1832. Assuming the matter to be a good defence to that extent, it is no defence to the whole cause of action. The plea therefore is bad for this cause, and also for concluding with a prayer of judgment against maintaining the action for the said quarter’s rent. The second special plea is subject to the like objection. It also begins by professing to answer the entire cause of action, and then sets up matter and concludes in bar of the right to recover for the quarter ending first of May—a portion only of the plaintiff’s demand. Both pleas, taken together, were intended by the pleader .to be a bar to the breach in the declaration, and yet each singly professes in its commencement to constitute such bar. It is well settled, where a plea begins as an answer to the whole declaration, and answers only a part, that it is bad. 6 Johns. R.63. 18 id. 28. 19 id. 349. 4 Cowen, 424. 1 Chitty, 509, 510. It is not material to consider the principle upon which the pleas are founded, assuming the matters to have been well pleaded, as that question necessarily arises upon the bill of exceptions. For this reason I presume no amendment was asked for in the court below. The judgment was therefore absolute and correct.
As to the bill of exceptions: The corporation of the city of New-York have power to open any street or public place/
The court below, decided that the 181st section, providing for a just and equitable apportionment of the rent between the landlord and tenant, did not mean a rate according as the area left bore to the whole premises demised, but that, in making the apportionment, all the circumstances connected with the improvement should be taken into consideration, and that the question for the jury was, what rent the tenant ought justly and equitably to pay the landlord for the residue of such premises; and if they believed, under all the circumstances and evidence in the case, that the premises, after widening the street, were of equal or greater annual value than the rent reserved in the lease, they should give a verdict to the plaintiff for the whole rent, with interest from the time it fell due; otherwise they ought to make such deduction as under the circumstances they should consider equitable.
We concur with the court below in the opinion that the apportionment should be made regarding the value of the premises, and not the area of the part taken in reference to the area of the whole premises demised. The tenant should be discharged from the rent, if at all, in a ratio to the value of the part taken for the improvement of the street. This is according to the principle of apportionment of rent at common law. Viner’sAbr. tit.Apportionment, B. 2Inst. 503,4. Bacon’s Abr. title rent, L. N. Cro. Eliz. 622, 771. 3 Kent’s Comm. 469,470. 10 Co. 128, a. The principle was conceded on the argument upon both sides. Assuming this to be the true rule of apportionment, the material question presented is, whether the construction given to the statute by the court below be the correct one.
Under the exposition of the statute by that court, the tenant may continue liable: to pay the whole rent after he has been dispossessed of a part of the demised premises. In this case 833 square feet were taken from 3378, the area of the whole, and no abatement of the rent made. The common law would
We are next brought to the question, whether the landlord is entitled to any benefit to the lot arising from the Improvement of the street during the tenant’s term ? If he is, it must be. by virtue of the statute. At common law it would belong to the tenant, as he would be discharged from the rent in a ratio to the value of that taken by the corporation of the city for the improvement. The language of the statute seems rather to indicate the application of the common law rule. It is as follows : “ The rent shall be so apportioned as that the fart thereof, (part of the rent) justly and equitably payable, or that ought to to be paid, for such said residue thereof, and no more, shall be demanded, or paid or recoverable for or in respect of the same.” The fart only of the rent, justly and equitably chargeable upon the remainder of the demised premises, is en
It was not material to have inquired on the trial, as was done in this case, upon what principles the commissioners acted in making the assessment, and whether they took into view the improved value of the tenant’s term. They were bound to act in conformity to the regulations of the statute, and we are to presume they did so. If they did not, the
The ground then upon which I place the decision of this case is, that the statute subjects the tenant equally with the landlord, in proportion to his interest in the' premises, to the expense of the improvement of the street; and this being so, no reason exists for exacting from him an increased rent for the residue of the premises by reason of any enhanced value of them. If the value has risen by means of the improvement, he has paid -an equivalent in his share of the expense. The rent can be increased upon him, justly and equitably, only upon the idea that he has been at no expense in the improvement which has produced it; Such an idea is in the teeth of the statute. The benefit and advantage to the tenant must be charged to him by the commissioners, and the whole of it goes towards the improvement of the street one way or another, either to satisfy his own damage or that of others.. In what does this benefit consist ? Beyond all question, chiefly in the enhanced annual value of the demised premises, by means of the improvement, and which he enjoys during the residue of his term. For this hp can afford to contribute towards the improvement. Indeed it is somewhat difficult to imagine any other advantage that can possibly accrue to the tenant, and that the commissioners could take into consider- . ation. If so, it would be the extreme of injustice to charge
The point of time in reference to which this apportionment should be made, in analogy to that at common law, must be at the time of the eviction, or in the words of the statute, when the corporation “ shall become and be seized in fee” of the premises taken for the improvement, and that takes place upon the final confirmation of the report of the commissioners by this court. They may then take immediate possession and control the property, and if any further indulgence is given to the tenant, it becomes a question between him and the corporation. He afterwards continues in possession at sufferance, and in contemplation of the statute has no further rights in the property.
Upon the whole, believing the apportionment of the rent should have been made without regard to the benefit or damage to the landlord or tenant, by reason of the'widening of the street, (that having been completely adjusted by the commissioners,) and that the common law rule should have governed the court and jury below, the error can be remedied only by a reversal of the judgment.
Judgment reversed.