*1 28 Herter v. 159. of case.
Stаtement [Vol. that it a it held case to Can' citizen. injury happened its which, did have actual notice of fact of duly not a through owner ? notice to the it actual -^authorizedrepresentative, gave a think in sidewalks, notice of defects We given with repair foreman of clothed sidewalks, power general a officer is notice to city district city, large throughout of the charter. within meaning highways having charge imputed protection against This construction city gives for actual from negli liability without relieving negligence It is not the statute. thus fulfills purpose gence, v. City decided Smith with inconsistent anything as con turned notice imputed Rochester (supra), actual trasted with knowledge. have us the case should now before gone the record
Upon a reversal and a new there must be hence, and, jury, event. to abide costs with trial, Gray, J., concur, except voting. All etc. reversed, Judgment Jeremiah Respondent, J. Mullen Herter,
Albert Thomas Mullen, Appellants. — Retention of Possession Caused and Tenant Landlord Holding tenant, intending- to remove Over. If a is not Sickness term, prevented by being obliged to retain a room expiration of his of a member of his days on account of the sickness for a few house
in the meaning per- of the rule which holding over within the not a family, it is year. rent for another the lease and recover continue the landlord mits by Impossibility Excused Premises to Surrender 8. Omission is ren- of his term at the removal If the tenant’s Removal. God, excused act of he is or the impossible accident by inevitable dered premises, at least so far as it creates to surrender omission for his implied by law. which is year’s rent liability for Mullen, 593, App. reversed. Div. Herter 18, April 1899; decided March (Argued Division Appeal order of Appellate entered first department, judicial Court Supreme V. MtTLLEir. counsel. Points of 1ST. *2 defendants’ ordered 12,1896, exceptions,
November overruling Division, in instance and first Appellate to be heard a verdict favor plaintiff upon directing judgment directed the court. material, so far as
The nature of action and the facts, are stated the opinion. was J. The over
Bernard
holding
Tinney
appellants.
tenant.
the fault of the
unavoidable
no manner
are not liable as
could not be
defendants
avoided,
the court below.
hold-over tenants for another
as held by
year,
; McAdam
v.
133
on Landl &
Aldrich,
N. Y.
(Haynes
291
;
Smith,
v.
1
386
21 ;
Ten.
Greaton
33,
Daly,
[2d ed.]
§
4 Ad.
v.
&
Jones v.
&
Dunn, 10 J.
Tuomey
291 ;
S.
Spears,
El.
The
286, 287.)
on Cont.
defend
; Chitty
[8th ed.]
832
from
ants,
act God
from
prevented by
removing
being
v. Tubbs,
demised
are not liable.
37
(People
premises,
Y.
1
&
Law
N.
Am.
586 ;
174 ; Wolfe
Eng. Ency.
[1st ed.]
;
201 ;
v.
20 Y.
Y.
Norton,
N.
Dexter v.
47 N.
Howes,
64
25
v.
12 N.
Dist. v.
107 ;
Dauchy,
Y.
School
HarmonyBingham,
to the
Conn.
The case should have been submitted
jury.
530.)
v.
v.
133 N.
492
Aldrich,
291 ;
Alt,
;
Smith
7
(Haynes
Daly,
Evers,
v.
30 N. Y. S. R.
Zimmer v.
833 ;
Black,
McCabe
must
shown to
N. Y. S. R.
over
be
37
312.)
N.
Smith,
and tortious.
v.
51 Y.
(Schuyler
wrongful
; Pickettv v.
314
v.
N. Y.
Smith
7
Bartlett,
277 ;
Alt,
492.)
107
Daly,
for his own
tenant
Where the
holds over involuntarily,¡not
the act is not tor
it,
he cannot
convenience, but bеcause
help
to the
tious,
should be submitted
jury
say
question
as entitled
landlord
whether there
such
v.
tenant for another
(Smith
to treat
year.
occupant
for at
maintained,
This action cannot be
7Alt,
492.)
Daly,
rent for the
all the
can
is double the
most
recover
house,
the defendants
fifteen days’ occupancy
having
at the
of tlieir
notice
intention
quit
given
10 ; Hall
(4
2457,
term created
the lease.
R. S.
[8th ed.]
§
Wood
Landl & Ten.
536 ;
967,
v.
Johns.
Ballentine, 7
Real
Washb. on
558 ;
[5th ed.]
Prop.
§
O’Brien,
[Vol.
Putmam Smith for
isIt
settled
George
respondent.
beyond
question
tenant’s failure to
yield
the time
has the
lease,
landlord
provided by
option
either to treat him as a
or to con
trespasser
dispossess,
sider the
another
of the lease.
renewed for
term
tenancy
v.
(Schuyler
Smith,
Cohoes,
that after this notice the to show permitted them, and premises to hire persons purchase wishing the house the that it was that place usual notice let; the defendants from all moved the house with their property and and that of the first belongings, family, day before the lease May, 1895, from bed- except expired, room where their mother was confined illness by dangerous until the fifteenth of when she was removed following, May and the vacated, were forbid- whоlly they den physician charge moving disturbing the mother the fifteen him informed were during days, it would her if an life was made to imperil attempt remove her. These affirmative were the answer allegations as a defense. the trial it was pleaded On con- together single ceded the defendants had the affirmative the issues, since written lease was admitted produced and the under it. pleadings possession from the record that the appears defendants’ counsel then the case to the proceeded the close of the open jury, the court would resolve opening suggested controversy itself into and that the facts should be pure question law, counsel then agreed upon. admitted plaintiff’s *4 notice the tenants of their intention surrender the up on the first of had premises been as May given February, in the answer. The defendants’ counsel then alleged stated that the reason for over after the the of lеase holding was the sickness the defendants’ mother,'she then being member their and he that he stated could unless family, have it admitted as it is that he pleaded wanted no admission whatever. The counsel then as plaintiff’s fact, admitted set fortlf the answer. The last of the answer clause con tained that the over wraswith the knowl allegation of the the and at the permission landlord, edge plaintiff, of the counsel this was with suggestion plaintiff’s allegation drawn. The case then states that the record and the upon the at defendants’ the court, counsel’s request opening, the directed a verdict the defend- counsel, against plaintiff’s v. Mullen. O’Bbieit, Court, per
Opinion of the [Yol. the ants for and that defendants this $558.63, excepted direction.
It is from the record somewhat difficult to ascertain just at the trial. It what were the court questions passed upon were liable is clear that he held the defendants enough notwith- the for another rent from first of May, year’s to the in the answer with respect facts standing alleged of her illness of defendants’ and the mother, impossibility removal without her life. endangering r that the other alle The learned court must also have held the fact in connection with answer pleaded just gations on the referred the removal of the mother 15th that, to, 1895, the defendants surrendered day May, surrender, and that latter such was plaintiff, accepted as a view the defend not available In fact defense.I ants clause were to withdraw requested particular the further fact that which was with, and answer, complied states that "a was record the case verdict directed I defendants’ it counsel,' must, think, opening answer contained 'assumed that the decision was no which been withdrawn, defense after had stated allegation over was with consent landlord. this After the defendants’ had withdrawn counsel allegation that he have the facts аdmitted he stated desired to other just ' he had them and with. complied pleaded request all cover the facts must be held to therefore, The admission, alle in the answer, particular affirmatively pleaded except had withdrawn. verdict was After directed been gation it a fair construction of defendants would not be to hold that the admission took trial what applied place over on account sick fact of holding only single held that was must, the mother. I think, ness of *5 all the the facts admission affirmatively pleaded, except to be which the counsel requested plaintiff’s allegation single made the The direction been open upon having withdrawn. in the' which counsel, the does appear plaintiff’s ing is that a ver the fair the construction record, case, upon r> oo Heetee Mellen. v. O’Biuen, Eep.J 3ST.
(cid:127)diet was after answer, directed modification by upon withdrawal of the referred to and opening upon allegation mean the of counsel. The must record this connection in the case. v. Healy, 555.) pleadings (Kley counsel was, therefore, admitted by plaintiff’s fifteen after the of the term days expiration provided lease the tenants to the landlord surrendered premises and that the latter surrender. After sur- accepted render there could no land- rent, be recovery since/the lord could not have the use and the stipu- lated rent at the same time.’ "When landlord accepts surrender of the this act premises, discharge operates tenant from all for rent in the and if the future, con- liability struction at the trial be the cor- proceedings suggested rect then the direction one, of verdict the defendants was error. ...
But, most in the arises case perhaps, important question the facts and it upon circumstances which is claimed constitute the tenant after the of the term expiration in the lease. For specified every necessary purpose determination of that we must assume that facts question are as since it must have answer, been alleged that the verdict assumption was directed. There can no doubt that the rule of law is settled debate contro beyond versy at his landlord, to treat the permits election, tenant as for another the latter remains year,when after the possession of the term. When the expiration demise is for a term definite one at a-fixed rent and year the tenant holds over after that term the landlord expires, treat him aas tenant for another and collect rent year 133 N. Y. [Haynes Aldrich, 287 ; Adams accordingly. id. Cohoes, 127 But the is whether the question tenant did in fact hold over after the of the term, within of that rule. If is an meaning arbitrary one, under all circumstances and applicable conditions and enforced case without to the every reason regard *6 [April., Herter v. Mullen. O'Brien, 159* [Vol. there which it is in a sense' said that strict founded, may this rule that obtains a over in this But in. case. holding a relation of landlord and tenant is common part in its. to is consist law, chief merit of which supposed as. new conditions circumstances adaptability changing an time. It is not unchangeable of developed progress a like that of the Medes and but code, Persians, system has of civilization, with the capable up growth grown of in moulded to meet the wants of society every stage being answer in its facts disclosed of From by progress. the. at the the tenant case vacated house his in a one which member family bedroom term, except he was warned illness so serious that was confined by her her would to remove imperil physician any attempt in virtu- trial court the case life. The the learned decision of was. last the tenant’s term he that on the holds ally day for another must rent in where he either pay placed position to take or that he did not intend occupy, for house year sense, certain the'risk of responsible becoming, her from remove .a. death of his mother by attempting of a This would sick room protest physician. against to the a rule of law relation seem to be applicable pushing makes it unrea- tenant to a which of landlord and very point to such if not and before sonable, absurd, appli- assenting there- are forced to cation of we it, inquire/whether naturally in this case- the tenant fact such over was in any on the tenant who, Does a as the rule fairly contemplates^ or is the term is his death bed, last quarantined day authorities to spread house prevent his public or is insane com- or or disease, infectious some dangerous his will some superior to remain the house pelled over within circumstances, meaning force stress of hold treat, the landlord in the sense that law, permits í him a tenаnt for another principle upon year (the is such act is that rule founded or leas- his the law contractjon part, tenant [implies But whenever law for another year. the ing *7 Court, Opinion per O’Bbibn, 1ST. of the J. a from the
[implies act or conduct of the party, contract] act whatever it The law. itself, must he, be may voluntary. does a contract an act of or from not[imply obligation] ¡or or which results from mistake party proceeds fraud, or jof force coercion or is due to stress kind,] any any circumstances which his life that some involves to or peril member his To or contract'from family. promise (infer act from such any causes would plainly resulting manifestly to reason and contrary therefore, justice. question, occurs whether the tenant in this remove to case, by failing his mother from the bedroom in the her house, presence there the fifteen after the of the during days term) should be held for another rеnt, year’s prineijfie oon to hold for another is to be agreement year implied by fan law from his conduct under the If this ques circumstances! tion must in be answered there necessarily affirmative, would be no further But discussion. it seems grounds any me that, to reason and all the law, analogies for another cannot and should not hiring year be|implied the tenant such circumstances. ¡’under The case is not within the reason and, not rule, therefore, is governed it. While this court has adhered to firmly principle landlord entitled to treat the tenant who holds over as lessee for another it is from what was said in plain, year, one of the most recent that the rule was not cases, considered one. On the it is intimated that it arbitrary contrary, not so that it could not made in to bend rigid properly cases. exceptional peculiar Aldrich, (Haynes supra.) Where over is and not holding wrongful ) -voluntary, unavoidable in the strictest sense, rule must be pеrmitted have full But where as in. this tenant, application. retain a in case, room the house short obliged period of time order to avoid the a member of peril exposing his it cannot death, be said family dangér properly it is a over within the of the law. a Where meaning under such a stress of circumstances the party acts act(cannot be said to from his own more than if he proceed any volitionj O’Brien, [Vol. detained in the under direc- had been house by police tion of the health authorities."] the rule
In enforced v. Aldrich court Haynes (supra) those different from a case where facts were quite how case, record now us. In before appearing had who for the court evidently learned ever, spoke judge in mind some case which be considered exception might That is the inference from the following the rule. plain “ whether mean to : I do not say opinion paragraph all times be has over at some- there been *8 the to the facts as to submission so doubtful require I mean that there is no such doubt present to say jury. not be whether there case. I reserve the also, might question, the tenant, manner the fault of no delay)J[in ^unavoidable as a valid which would serve excuse. directly indirectly) unavoidable) was a which that here holding enough over[not where the chief diffi have and been provided against) might act.” tenant’s own out of the wrongful culty directly grew had El. the defendants Adol. & 832) In Jones Shears (4 with mine for proviso rented coal years twenty-one time terminate the by tenancy any giving they might term commenced notice that effect. The April, to previous the notice thereafter defendants 1825, and four gave years two however, continued for. possession They, provided the notice, the time limited after the months expiration for the an action mine. The landlord brought working him to over right rent, gave claiming rent. The defendants tenants at the former them as treat intent to was with that this over any claimed had the and renew the they the notice tenancy, waive so under which held the circumstances they to show right therefore, intent this proposed they, over. Upon question two months them those the coal worked show that during to the roof of of coal was taken from supported pillars tenant on for the that it was leaving customary mine, with could as much coal as safety mine to cut away J., left allowed, was This evidence removed. Coleridge, IIerter O’Bhien, it to the the circumstances to whether under jury say notice and defendants held over with the intent to waive the . . a verdict for continue the found tenancy jury not.»} a new trial was and a motion for defendants, subsequent at the to the Bench the denied. ruling Upon appeal King’s “ It trial was Justice, Lord Chief affirmed, saying: Denman, not to leave the to issue question impossible upon for them decide whether and it was to parties, by jury, to ah intention their showed mode continuing possession, remain tenants as waive their notice to quit before.”^ a tenant said: “I do not know that where also J., Littledale, to hold holds he be considered bound over always * * * are Here, terms as far as same they applicable. held over was not whether however, parties question but whether held on 'the terms of tenancy, they original as tenants at all. It was for whether jury say intended! to avail themselves of their notice the defendants!" the acts done them amounted to or whether quit,» 286, such notice.” In on Contracts waiver of Chitty (pp. after the effect of the 8th Am. receipt ed.), discussing of rent after the of the term,, the landlord *9 the over the learned author adds: tenant, and a holding by “ of over and the of the fact And both payment holding the so as to rebut rent presumption explained to create á from intended thаt the thereby tenancy parties a The law in cases excuses from many party year.” year a contract or some other act when dis of the performance of this court in a was the decision sickness. Such abled by had contracted to render services a personal where case party a was dis but after time, partial performance for a specified that the non It was held notwithstanding sickness. abled by this the reason of person disability, rendering by performance, a meruit. entitled to recover was upon quantum the services a The of Y. v. 20 N. Howes, disability party 197.) ( Wolfe the contract reason or to perform by the thing, do particular the act of a G-od. So it by held to disability is of sickness a to secure that sureties recognizance upon held been has v. Mullen. ITerter O’Brien, [Vol. to a criminal answer of court to attendance principal defend when sued recognizance, charge may, by was the. disabled attending principal ground The Tubbs, reason of sickness. 586.) (People a of is where the duty charge rule performance general accident without is created law prevented [unavoidable he will be excused. (Dexter of v. Nor the fault party,-] Mill Dam 62 ; 21 Pick. ton, Foundery Hovey, 47 N. It with distinctness the wide note more important v. Aldrich difference between case Haynes (supra). of In that the tenant one of the covenants case violated held over lease The sub-tenant premises. by sub-letting the term the tenant was sued after the expiration created a over tenancy rent upon principle holding The tenant another .excuse year. sought a of the sub-tenant, over distant relative by the allegation in the house after the who was in was detaiiied possession, the term This court held that sickness. expiration was lease and inasmuch as violation sub-letting n was that he a act on thе could tenant, part wrongful the result of not be situation which was excused plainly a’ of the lease. his own violation covenant plain claimed was or tenant, the situation it was excused another his own creation by party [possession putting in that case very properly premises. act of the tenant attributed to the putting wrongful into demised possession premises. stranger over after the tenant for a holds "When a year actually which follow term, legal consequences at his The landlord are well settled and understood. may, him tenant for another treat either as election, trespasser *10 must estab but in case the fact be year, any treat him as a tenant and collect landlord cannot lished. unless the are such as to the rent for another facts justify year, him as a An act which him in trespasser. proceeding or when done commit trespass, ordinarily constitute might O’Brien, the JST. such when be
ted or cannot always intentionally voluntarily, Underhill or (cid:127)done involuntarily.!'(Moak’s committedf or some the tenant The mere fact Torts, pp. the room in is remain in a of his member family obliged not neces the term after the demised house expiration must or not Whether it does amount to sarily trespass. is there If he detained circumstances. upon depend of;some unavoid some act of God or superior power,ion' legal is not deemed tó able ordinarily trespasser. necessity,!he be.a some act towards A person trespass presupposes wrongful case another. If the tenant this actually or property him ; could maintain held over, ejectment against lease his intention remove on but since day expired this defeated clear, only dangerous purpose dif think, I would, member his illness family, of. 4 had house ficult to that he such say possession and' facts would action same support ejectment, him from such circumstances action protect woifid is based claim, also defeat the would present upon to lease for another of an year. ’LI implied agreement theory in the answer do not mean to that the facts stated would -say a defense to an the landlord for action by damages covenant lease based breach of the surrender the demised A law
term. or and one created duty obligation imposed by or different contract covenant stand when grounds seeks to be excused of God’or unavoid party thefact able or stress of But in casethe accident, x circumstances}! foF the of the landlord to collect rent second does year right n contract or covenant. It rests depend upon any express derived from wrongful wholly upon legal implication act if that was not of the tenant in act over, fact under the circumstances, excusable, but, then wrongful, basis for аny? no I implied promise agreement.! there the tenant some of his if member should assume that family one would then con term, no last day die on for a continued house occupation tend few *11 [April,, Herter v. Muller. Court, per O’Brien-, [VoI. the funeral would amount to a days during wrongful holding over within the of the law. Such meaning interpretation aof of the common law would shock not our principle only sense of but justice, every feeling decency humanity. The case us differs before from that Both only degree. obvious, cases must be a common It is governed principle. that in the of the rule under to- now consideration application the relation of landlord and tenant there must be a point we cannot and that is reached when beyond go, point __which over indi attributed or alleged holding directly jjcannot to some fault on the rectly There part may tenant."| be cases in which the of a in a room house after- оccupation has the lease terminated will ato or war trespass notjamount rant of a lease for another Since a. implication year. as a a cannot, commit or make party rule, a general trespass contract without effort of volition on his an act [some part| due unavoidable or accident from some resulting overruling tof circumstances, or stress of can form no for- basis necessity a contract. It is wrong reasonable, imputing inferring to conclude from the facts and therefore, circumstances stated the answer that defendant was anot trespasser during fifteen his mother room the days occupied house and could not be removed without her life, endangering nor tenant for another It year. follows, therefore, was not entitled to recover rent time from the when the house vacated. completely be said is a conclusion may departure but it is not to see how it is. Ho case has precedent, easy been cited and none has been found where was held facts, such state of such a situation as is disclosed amounted to within the tenant the- answer, of the rule that is to sustain invoked landlord meaning this action. rules to a sometimes Legal point, pushed and it then where they accomplish grossest injustice, becomes the courts to limit their to- duty application their cases that are within true and fair We- scope meaning. n further than in the- no the facts stated that, say go *12 Martin, Opinion Court, per N. the of J. if
answer, no ovei conceded or there was established,' the the tenant of within reasonable fair or meaning any rule- the the lease landlord to continue which6-permits another year. should and a trial be reversed new judgment granted,
with costs to abide the event. J. This rent action was to seven months’
Martin, recover of a house situated avenue in the Madison dwelling city upon of New York. There was a lease between the parties which the defendants 1894, rented the from 1, premises May for the of one in the rent period year, monthly payable installments in advance. The rent for that term has been paid. action the rent for a By seeks to recover plaintiff portion the on that the defend- succeeding year, ground ants held over after the their thus of and term, expiration became liable for the rent of the for that time. premises
The facts are The defendants undisputed. alleged defense to the action the with the contract or lease making the that in the plaintiff; month before February, of "their term, expiration notified the that they they plaintiff would not retain the for another and after premises year, such notice the and his plaintiff were show permitted agents ” “ and to premises usual notice Let To place them, remained term. The balance of the during then defendants that on specially 1, 1895, alleged May defendants were prevented yielding up possession the act of premises God their mother, afflicting [who awas member of their with at that a disease family] which, time, and fifteenth, previously, subsequently May including her confined to her bed' so that it would have her endangered life to take her from the and no that for reason house; other, which the had full and notice, plaintiff knowledge the defendants were and did small obliged occupy portion of until that all their fifteenth; May property, furniture and and their were removed from family belongings thereof premises, 1, 1895, every part May except Herteb Martin, {Vol.
from the mother which their was confined, sick room were forbidden to remove they physician charge her until when she was once removed. fifteenth, May trial it admitted that first of Febru
Upon the first notified the that on 1895, the defendants ary, surrender the May would up possession they give were under the lease was That premises. they occupied the fact that the rate of defend admitted, also rent, ‘from, of the lease ants held over after necessity] *13 then the facts set some fifteen The admitted plaintiff days. the' of the defendants’ to up impossibility1 answerj^as so that the expiration year,; possession surrendering the facts the is whether, question notwithstanding presented was as a matter the entitled answer, the of plaintiff alleged the law rent for the to recover year, ground succeeding upon the after the of defendants held over their expiration term. to a concession that [amounts
The admission it of the defendants’ was reason the sickness of mother] the of to surrender the them up possession for impossible1 far as it was the possible they to did plaintiff; [so was their retention [wholly so hence, involuntary!] ;|and, as to the of it there was doubt If any [question impossibility] the the defendants’ submitted to should have been jury, was well Thus, of a verdict taken. the direction to exception is whether word,' thatj impossibility in a qualified question or action, defendants’ whether,¡although impossible] the entire of a small part surrender premises, them a for rent for the liability a few upon imposed days succeeding year. holds that where is well settled
It tenant]voluntarily] his he held ‘as an term, upon [be after the terms prior to hold for year upon agreement ; Denio, 1 v. Starkweather, lease. (Conway 114 v. 33 Y. v. Clark, N. Aldrich, Pilots Commissioners 251 ; [Haynes N. Y. 287, 133 289.)] this is said often an The basis liability implied 43 1ST.Y. Mastín, the tenant hold for another part agreement upon While I as I call- year. doubt, have, always propriety think contracts, class but ing implied obligations they law are to be duties which yet, imposes, regarded or whether be denominated contracts duties implied they arises created either case law, right impli- cation and in sense of law no express)or absolute] ,/ > contraсt. is also settled well that where a or created duty charge'is and the law, acci prevented performance byjinevitable dent or act of without fault of God, party-sought he will but where person [charged,; absolutely be.excused) contract himself to do binds by express particular thing' will not at time not be unlawful, he impossible - fault unless of the other excused,; through party. rule reason latter of this is that given portion he'might have his contract inevitable accident provided by N. of God. 12 Y. act (Harmony Bingham, ; Tompkinsv. Dexter N. Y. 272 ; Norton, 47 Dudley, ' Thus most can be said of the that arises obligation] the relation of and tenant landlord and follows aby_ *14 of i is that the is with the lease, duty] tenant general charged at the end of his term. If he fails, it’ia premises vacating the law of his or creates breach duty ordinarily implies his rent. for another This ¡liability] part year]s being abso-i, created law an or or by by express dutylimplied f it falls within first lute part foregоing agreement, it is that if the tenant’s removal hence, obvious and, rule, or the act of inevitable accident God, rendered)impossible: by his omission surrender -excused for premises, he is ¡at a) rent far creates so liability ¡'¡which least year’s law. is by ¡implied] 'the distinction between effect of reason impos-/
The accident ineyitable occasioned by of performance, sibilty an created con- obligation God, upon by express 'the act has which the law an implies, been obligation tract, upon “ law to once the unwillingness ,at rest upon held 44 Hebter Martin, [Yol. and exact the
create, impose [performance obligationjfor- bidden or rendered impracticable] interposition Providence.” v. District 25 (School Conn. Dauchy, Under of the authorities to this principle subject, relating I think it is clear as the that, to be enforced obligation sought was one created law and not agreemеnt par- ties, was a valid and the performance excuse, [impossibility]of defendants cannot be held for the rent for the subsequent year.
Moreovei, same result be reached another There are cases where the courts have ground. many implied a condition in a contract to the effect that a is relieved party from its terms where its without his has, fault, performance 1 become which those cases are principle upon impossible.] based when the contract was con that, made, parties condition existed templated subsequently might arise and render performance impossible, implied condition is to be as a construed contract, part existing and thus relieves the case that condi party liability tion arises. v. v. (Dexter Norton, N. Y. Lorillard 62 ; 47 142 Y.N. Steward v. Clyde, 456, 462 ; Stone, ; 127 507 v. 71 N. Y. v. Rosa, 40, 44 ; Spalding Caldwell, Taylor ; Kein Best & 826 S. Robinsons. L. R. ; Davison, [6 Ex.] 269 ; Dolan 52 Y.N. 149 Y. N. Tupper, Rodgers, 489, 492.)
To hold this case that this was made agreеment condition the defendants should not be implied required vacate the at the of their term in the event that it was rendered inevitable accident impossible by or the act of God within the of the author- quite principle ities cited. this as it it is But, be manifest may, charge which the seeks to enforce was created liability *15 that law and not as its was by agreement, performance fault, without the defendants’ were excused prevented they from the which seeks now plaintiff liability] ^onerous enforce. true that the well and doubtless be, is, plaintiff may v. Mullen. Gray, opinion, per Dissenting Y.N. J. defend-,
recover for the time the were occupied premises by or if failure ants, reason of their to surrender by prem- up ises that follow, additional be recovered in damages they may that action so all caused the defendants’ proper damages misfortune would be borne that he them, but cannot recover the rent for the cоntract or year subsequent implied seems to me law, clear. duty imposed These me to the considerations lead conclusion that the judg- inment this action should reversed and a new-trial ordered, with costs to abide event. This action recover (dissenting). brought
Gray, of the defendants rent of certain premises city Hew which York, had been leased to them the originally for the term of one from year May 1st, 1894. The plaintiff defendants held for some fifteen after the days expiration of the term and the rental claimed in the action moneys were for seven months 1st, 1895. The subsequent defense May substance, set in the answer was, in up that, to the prior term mentioned in expiration the written lease, the defendants had notified the that plaintiff would not take they for another premises had hired another year they house; but that had been they prevented up yielding the act of God the mother possession “by afflicting these who defеndants, was member of the family * * * awith defendants, disease was so great it would have her life to have taken her from the endangered room.” The lease contained the usual agreement lessees to and surrender the at the quit premises teyn. the trial no evidence was
Upon ; facts then given being and there between the The stipulated admit parties. plaintiff ted defendants notified him, 1895, February, the first day would May, surrender they pos session defendants admitted that they remained over after the first without assent of May true admitted to be the statement plaintiff. *16 Herter Mullen. Gray, opinion, per Dissenting [Yol. ill defendants the mother defendants was the first of. their the1 condition May, alleged answer. these admissions of the the trial Upon parties, judge a directed verdict for the of rental amount demanded To under terms of written lease. moneys direction defendants and the excepted Appellate Division affirmed the entered thеm, having judgment further they to this court. appeal The thus raised for our whether consideration question is, the rule of which has law,) controlled in such always cases} to be affected the fact that the over the defend holding ants was reason of illness of their as a member mother, in that The and,rtherefore, sense, family, involuntary. has a doctrine been settled®one in this state that long tenant holds who over his is a term,! either, trespasser, continues to be at land sole election of the tenant, that, latter he lord, case, implication legal , former As holds at the rent. should be appeal disposed I shall advert to a few cases and to authority, which have been The opinions expressed. question early in what as discussed case Con may regarded leading where the tenant held Starkweather, Denio, way (1 113) ; over for the his term two weeks. Bronson, J.,Ch. period in his laid down the rule with considerable opinion, pertinеncy has that “the tenant no such election as said that which he over, to the landlord. If holds belongs though very at act the time short any unequivocal give period,(without the character of a he is his not afterwards holding trespass^ that he is in as a if the tenant, landlord liberty deny relation, hold him to that the tenant chooses to hold flf weeks then he over for two is not I see no tenant, say (cid:127) he the same answer after reason why may give months or j counsel many years, plaintiff’s regards over as evidence of con only presumptive which would have tinuance been tenancy, sufficiently the offered before his proof plaintiff, rebutted another refused to even ended, keep property year, term *17 Gray, Dissenting opinion, per J. at a reduced rent. are But such not views. I do not my think case but one where presumptions: balancing the act of in has the defend over plaintiff holding given ants a treat to him as that it is not tenant; and legal right liis to throw that it off however onerous power character, later, be.” A number of in the of case years Schuyler Smith, Y. for the N. defendants had held over (51 309), of three weeks after the of the lease period expiration the claim of the to hold them as tenants they opposed for the whole that had him year, upon ground they given notice, before the of the did not term, expiration they intend to for another with his keep premises and, year had made other knowledge, arrangements occupy premises. the rule as law, settled Judge relying by Conway Earl, v. Starkweather and cases, since other recognized 'by where tenant holds over after the his term law will for a to hold the terms imply agreement year upon “ of the lease, overruled their : prior contention and said The safe and rule I believe to one established just that a tenant holds over the term at his authority, peril; the owner of the treat him a as as premises may trespasser a tenant for another the terms year lease, upon prior so later, far Still Adams v. applicable.” City of N. Cohoes, (127 175), Judge delivering opin Potter, ion of this in the second discussed court, division, this question “ authorities observed so absolute light that, is the for a over few implication holding days only, for another that the tenant will not be excused hiring year, from the rent, even he where the landlord payment gave intend, notice before the end of the term he did not hire for another and had hired other year would be for his in a few ready days.” occupancy Finally, we have the case of (133 N. Y. Haynes Aldrich, 287), where over defendant was from first to the fourth of and was to be excused May, sought upon these viz.: the first was a facts, day May holiday; that on second there wras day May difficulty engaging IIerter
Dissenting opinion, per Gray, [Vol. trucks and that a sick boarder could not be with mоved safety until fourth Finoh discusses in his day. Judge opinion of such a efficacy somewhat defense, elaborately, and, to the rule as well settled that where referring by authority is a there the tenant the law will imply hold for the terms agreement year lease, prior makes observations following argument “ does the rule but seeks appellant: appellant deny it so as' to mean that it is when the tenant holds qualify only for his own the landlord’s oveifvoluntarily conveniencejthat *18 it and that does arises, not so arise when the tenant holds right not for his own but because he convenience, overiinvoluntarily, any qualification.1 am cannot I averse to such help would it.] a introduce into rule whose chief value lies uncertainty in its confusion would be certainty.. consequent very great. Excuses would be and their be always forthcoming, sufficiency to the conclusions a doubtful lessor subject would jury, andjno know when ever he could to a safety new promise possession “ if the in he rule this case says that, seems Again, tenant.”] a to involve is true sometimes hardship, every gem rule, eral however does not its but abro wise, just justify To sustain this would the door defense to a Sopen gation. settled tend involve destruction the to the doctrine]and; of both lessor and lessee in and confusion?’ uncertainty rights is but neverthe ; This pretty language appellants, strong the case as seek because less, authority; distinguish it was a whose illness the sur there sub-tenant, prevented was reserved whether render possession, question an inevitable no manner the there not be fault delay, might a would serve as valid It is tenant, óf the excuse. true of a that there is distinction between two cases; much think the to be somewhat so far distinction as shadowy, but[l is the excuse for not con up yielding premises promptly with I cerned, ¡and agree reasoning opinion case, Division no such present Appellatе qualifi could should absolute be, safety be, cation into imported make the landlord rather than the law. ten rule of Itfwould | Hertejr 49 opinion, per Gray, Dissenting which he, misfortune to the tenant, ant reason of sufferlby - < ¡ should bear burden landlord, ] ] \ of.”J J Aldrich, Finch, me that Haynes It seems to Judge has reason against any qualifi convincing importing given rule of which its into a well-settled law, by application cation rendered uncertain facts by according pleaded might the tenant. I am Starkweather, case of
Since the Conway leading admit of the rule been not aware of any having qualification ted think that if case arises in and I which operates harshly, the sake of the which,¡for Sthe-misfortune one stability rather than the tenant should be borne rilled is that landlord.' The rights underlying principle ¡effect are their must determined parties engagements contract." The doctrine settled by given of this obtains in other decisions courts state many Ohio, 9 294 ; 450 ; Ill. 4 Md. (99 151 ; Conn. jurisdictions. 144 ; 2 Penn. St. Ala. 334 ; no sense be considered like case where per-
¡This formance of a condition is the act nor God; prevented n onewhere *19 of an was not intended discharge obligation fully It is a its which, contract simply by by parties. and use of the terms, occupancy premises gave n owner term and conditions; for a under specified specified fixed the .rent and which contained the which paid covenant of the lessee and surrender the to quit the demised The distinction is well term.'] law settled between and duty obligation imposed by covenant of the In the former if the case, created by party.. without is disabled from default of his any party performing, (cid:127) n own, him. are where the law will excuse Illustrations a tenement is caused its destruction waste to by by tempest by the contract is for services enemiesor and personal ¡where ‘ n conditionof continued existence is raised But implication. by his contraсt, a own he is where the creates duty by party make it accident bound to any by good, notwithstanding he because have Inevitable provided necessity; might against 7
50 Sherman Grinnell.
Statement of case. 159. [Yol. it his Wm. note (2 Saunders, 422, 2 ; contract. Pick. 62, 417, 441 ; 47
Of was to submit to and course, there nothing jury a. for did not a submission. All facts defendants request on for trial,, were when case came stipulated, judgment and the one the. whether,, for court, they presented question rent, in established law, they plaintiff’s right demanded.
I with costs. think the should be affirmed, judgment for reversal, and read' etc.; JJ., Parker, Martin, O’Brien Oh. concur. J., J., Haight, J., JJ.,, reads for affirmance, Bartlett
Gray, Vann, concur. etc. reversed,
Judgment George Roger Irving M. Appellant, Sherman, Grinnell, Henry S. W. Har Bowdoin, Treadwell Cleveland don, Respondents. Regularity Judgment-—Federal 1. of State Court Question. open to- is not regularity judgment rendered state court capse question ground against its on the of action is face statute, Supreme public policy where the as of a Federal violation question has decided no Federal Court of United States judgment. involved against Attorney — Judgment Execution Conversion against Precedent. of Arrest a Condition Person—Order complaint attorney charging him with the con- against on a An action and in n clients, plaintiffs money as his version of collected of law the defendant trial court a conclusion was found giving right the- money, action a nature to arrest is an converted Procedure, defendant, of Civil as amended under section the Code 1886; and, money judgment of section recovered force person of' issuing an execution authorizes the such action *20 defendant, previous granting of order of arrest. without the Imprisonment Execution for False under 3. Action Second — of First of Satisfaction Execution. Person Question imprisonment alleged under a damages false second In action plaintiff’s person, the arrest under against the fact execution presumption the lim- he remained on does not raise first execution months, duly discharged of six virtue of the end section its and was