48 N.Y.S. 594 | N.Y. App. Div. | 1897
Lead Opinion
On or about the 1st of February, 1894, the plaintiff leased to the defendant the premises Nos. 77 and 79 Hester street and No. 42 Orchard street in the city of Hew York for the term' of three years from May 1, 1894, at the yearly rent of $8,000, to be paid in equal monthly payments in advance, except the last three months’ rent, which was to be paid in advance on the 1st of February, 1897. The lease contained the usual clause of re-entry and a covenant upon the part of the defendant to pay the rent in the manner specified therein. On or about the 15th of October, 1895, the board of education of the city of New York duly made application to the Supreme Court for the appointment of commissioners of estimate for the purpose of acquiring title to certain lands in Orchard, Hester and Ludlow streets, and such proceedings were had that commissioners were duly appointed by the Supreme "Court, and on or about the 25th of Hovember, 1896, the said commissioners made a report which was presented to .the Supreme Court at Special Term, and a motion was then and there made to con
The question presented by this submission is whether the plaintiff is entitled to' recover the quarter’s rent which fell due on the - 1st of February, 1897, for the succeeding three months, and which it was .provided in the lease made by the plaintiff to the defendant should be paid in advance. The case of Giles v. Comstock (4 N. Y. 270) seems to answer this proposition. In. that case it was held that the landlord was entitled to recover the quarter’s rent, payable in advance on the first day of February, although before the quarter expired a mortgage prior to the lease was foreclosed in chancery, the premises sold, and the' tenant- attorned to and paid the same rent to the purchaser. The rule is distinctly laid down that to bar an action for rent the eviction must take place before the rent becomes due. And whether it became due by special agreement in advance, or without such agreement by the expiration of the term, does not vary the rights of the lessor. The question is as stated in that case, “ When did the rent become due and the right of action arise ? ” This rule does not seem to have been modified by any subsequent adjudication. It is claimed that. the case of Noyes v. Anderson (1 Duer, 342) establishes a different rule. But an examination of that case shows that, although language is used which- may be in
The plaintiff, therefore, is entitled to recover $750 and interest and costs.
Williams, Patterson and Ingraham, JJ., concurred; O’Brien, J., dissented.
Dissenting Opinion
There being no formal pleadings, the rights, both legal and equitable, arising upon the stipulated facts may be considered and determined by the court. The lease contained a covenant that the defendant “ shall and may peaceably and quietly have, hold and enjoy the said demised premises .for the term aforesaid; ” and there was a further provision that if the conditions and covenants of the lease were - fulfilled by the "defendant, then the plaintiff was to . extend the term of the lease two years more. The city acquired title on February 3, 1897, pursuant to act of the Legislature. The lease and all the covenants then ceased and determined, because, pursuant to such act, the city became seized in fee simple absolute . of the lands for the purposes for which it had acquired the same. It became the duty, therefore, of the defendant either to vacate the ' premises or attorn to the. city. He elected to perform the latter duty by remaining in the. premises, and paying, as he did, the rent to the city from February third. Notwithstanding this it is insisted that the tenant should, in addition, pay the three months’ rent in advance, which was due February first, for the quarter ending May first, so that, if obliged to pay this amount also, it is clear that the tenant will have paid twice for the use of the premises from February third.
In support of the view that, if paid, a portion of it could be recovered back, we have the case of Noyes v. Anderson (1 Duer, 342), wherein the court allowed a recovery for so much of advance, rent paid as was proportioned to the part of the month during which the plaintiff was deprived of the use of the premises by the action of the city authorities in tearing down the building. The recovery * was allowed on the principle that to this extent there had been a failure of consideration, the lease having been given and taken in mutual expectation that the plaintiff would not be disturbed in the enjoyment of the premises by any action of the city. (See, also, Whitney v. Meyers, 1 Duer, 266.) And in Dyett v. Pendleton (8 Cow. 727) the Court of Errors quoted from Baron Gilbert in his. Essay on Rents (p. 145), as follows : “ A rent is something given by way of retribution to the lessor for the land demised by him to the tenant, and consequently the lessor’s title to the rent is founded upon this: that the land demised is enjoyed by the tenant during the term included in the contract; for the tenant can make no return for
It is true that a contrary view seems to have been taken in the case of Giles v. Comstock (4 N. Y. 270); but that case I think is clearly distinguishable. There, before the quarter expired, a mortgage prior to the lease was foreclosed and the premises were sold, and the tenant attorned to and paid the rent to the purchaser. It was therein held that to render an eviction of a tenant a valid defense against the landlord’s claim for rent, it must take place before the rent falls due. The point of distinction between the two cases is, that there the lease was taken expressly subject to the mortgage, and it does not appear therein that there was any covenant, as in the lease here, for quiet enjoyment, or that, in violation of such' covenant, the tenant was evicted by .title paramount. In those two features I think this case is distinguishable from Giles v. Comstock, and it falls expressly within the principle of the cases above referred to, which support the proposition that, where one is evicted by a title paramount he should not be obliged to pay, or, if he has paid, that he should receive back a proportionate part of the rent for the term subsequent to eviction.
I think, therefore, that all the plaintiff was entitled to recover was what the defendant offered to allow, namely, $21.66, accrued rent to and including February third. For the reason stated, therefore, I dissent from the conclusion reached by my associates.
Judgment ordered for plaintiff for $750, interest and costs.