Herter v. . MullenHerter v. . Mullen
2. OMISSION TO SURRENDER PREMISES EXCUSED BY IMPOSSIBILITY OF REMOVAL. If the tenant‘s removal at the expiration of his term is rendered impossible by inevitable accident or the act of God, he is excused for his omission to surrender the premises, at least so far as it creates a liability for a year‘s rent which is implied by law.
Herter v. Mullen, 9 App. Div. 593, reversed.
APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered
The nature of the action and the facts, so far as material, are stated in the opinion.
Bernard J. Tinney for appellants. The holding over was unavoidable and in no manner the fault of the tenant. It could not be avoided, and for it defendants are not liable as hold-over tenants for another year, as held by the court below. (Haynes v. Aldrich, 133 N. Y. 291; McAdam on Landl. & Ten. [2d ed.] 33, § 21; Greaton v. Smith, 1 Daly, 386; Tuomey v. Dunn, 10 J. & S. 291; Jones v. Shears, 4 Ad. & El. 832; Chitty on Cont. [8th ed.] 286, 287.) The defendants, being prevented by the act of God from removing from the demised premises, are not liable. (People v. Tubbs, 37 N. Y. 586; 1 Am. & Eng. Ency. of Law [1st ed.] 174; Wolfe v. Howes, 20 N. Y. 201; Dexter v. Norton, 47 N. Y. 62; Harmony v. Bingham, 12 N. Y. 107; School Dist. v. Dauchy, 25 Conn. 530.) The case should have been submitted to the jury. (Haynes v. Aldrich, 133 N. Y. 291; Smith v. Alt, 7 Daly, 492; McCabe v. Evers, 30 N. Y. S. R. 833; Zimmer v. Black, 37 N. Y. S. R. 312.) The holding over must be shown to be wrongful and tortious. (Schuyler v. Smith, 51 N. Y. 314; Pickett v. Bartlett, 107 N. Y. 277; Smith v. Alt, 7 Daly, 492.) Where the tenant holds over involuntarily, not for his own convenience, but because he cannot help it, the act is not tortious, and the question should be submitted to the jury to say whether there was such a holding over as entitled the landlord to treat the occupant as a tenant for another year. (Smith v. Alt, 7 Daly, 492.) This action cannot be maintained, for at most all the plaintiff can recover is double the rent for the fifteen days’ occupancy of the house, the defendants having given notice of their intention to quit at the expiration of the term created by the lease. (
O‘BRIEN, J. The plaintiff‘s action was to recover rent alleged to be due upon the lease of certain premises for the month of May, 1895, and the six following months of that year. The lease was executed in March, 1894, and was to terminate in one year from the first of May following. The defendants, who were the tenants under the lеase, vacated the premises on May 15th, 1895, but as it was claimed that they held over after the expiration of the lease for fifteen days, it was held that they were liable for the rent for another year, and the plaintiff recovered for the seven months of the year that had elapsed before the commencement of the action. The rent, by the terms of the lease, was payable monthly, and the court directed a verdict for the plaintiff for $558.63, being the stipulated rent for the seven months, with interest.
The complaint alleged the making of the lease, the possession thereunder by the defendants, and that they had continued in possession until the time of the commencement of the action. The defendants, in their answer, allege that they surrendered possession of the premises to the plaintiff on May 15th, 1895, and that he accepted such surrender; that they had notified him in the month of February preceding thаt they would not take or keep the house for another year after May 1st, 1895, when the term fixed by the lease expired;
It appears from the record that the defendants’ counsel then proceeded to open the case to the jury, and at the close of the opening the court suggested that the controversy would resolve itself into a pure question of law, and that the facts should be agreed upon. The plaintiff‘s counsel then admitted that the notice from the tenants of their intention to surrender up the premises on the first of May had been given in February, as alleged in the answer. The defendants’ counsel then stated that the reason for holding over after the expiration of the lease was the sickness of the defendants’ mother, she then being a member of their family, and he stated that unless he could have it admitted as it is pleaded that he wanted no аdmission whatever. The plaintiff‘s counsel then admitted that fact, as set forth in the answer. The last clause of the answer contained an allegation that the holding over was with the knowledge and permission of the plaintiff, the landlord, and at the suggestion of the plaintiff‘s counsel this allegation was withdrawn. The case then states that upon the record and the defendants’ counsel‘s opening, the court, at the request of the plaintiff‘s counsel, directed a verdict against the defend-
It is somewhat difficult to ascertain from the record just what questions were passed upon by the court at the trial. It is clear enough that he held that the defendants were liable for another year‘s rent from the first of May, 1895, notwithstanding the facts alleged in the answer with respect to the illness of the defendants’ mother, and the impossibility of her removal without endangering her life.
The leаrned court must also have held that the other allegations of the answer pleaded in connection with the fact just referred to, that, upon the removal of the mother on the 15th day of May, 1895, the defendants surrendered the premises to the plaintiff, and that the latter accepted such surrender, was not available as a defense. In view of the fact that the defendants were requested to withdraw a particular clause in the answer, which was complied with, and of the further fact that the case states that “a verdict was directed upon the record and the opening of the defendants’ counsel,” it must, I think, be assumed that the decision was that the answer contained no defense after the allegation had been withdrawn, which stated that the holding over was with the consent of the landlord. After the defendants’ counsel had withdrawn this allegation he stated that he desired to have the other facts admitted just as he had pleaded them and this request was complied with. The admission, therefore, must be held to cover all the facts affirmatively pleaded in the answer, except the particular allegation which had been withdrawn. After verdict was directed against the defendants it would not be a fair construction of what took place at the trial to hold that the admission applied only to the single fact of holding over on account of the sickness of the mother. It must, I think, be held that it was an admission of all the facts affirmatively pleaded, except the single allegation which the plaintiff‘s counsel requested to be withdrawn. The direction having been made upon the opening of the plaintiff‘s counsel, which does not appear in the case, and upon the record, the fair construction is that a ver-
It was, therefore, admitted by the plaintiff‘s counsel that fifteen days after the expiration of the term provided by the lease the tenants surrendered the premises to the landlord and that the latter accepted the surrender. After the surrender there could be no recovery of rent, since the landlord could not have the use of the premises and the stipulated rent at the same time. When a landlord accepts a surrender of the premises, this act operates to discharge the tenant from all liability for rent in the future, and if the construction of the proceedings at the trial suggested be the correct one, then the direction of a verdict against the defendants was error.
But, perhaps, the most important question in the case arises upon the facts and circumstances which it is claimed constitute a holding over by the tenant after the expiration of the term specified in the lease. For every purpose necessary to the determination of that question we must assume that the facts are as alleged in the answer, since it must have been upon that assumption that the verdict was directed. There can be no doubt that the rule of law is settled beyond debate or controversy which permits the landlord, at his election, to treat the tenant as holding for another year when the latter remains in possession after the expiration of the term. When the demise is for a definite term of one year at a fixed rent and the tenant holds over after that term expires, the landlord may treat him as a tenant for another year and collect rent accordingly. (Haynes v. Aldrich, 133 N. Y. 287; Adams v. City of Cohoes, 127 id. 182.) But the question is whether the tenant did in fact hold over after the expiration of the term, within the meaning of that rule. If it is an arbitrary one, applicable under all circumstances and conditions and to be enforced in every case without regard to the reason upon
In Haynes v. Aldrich (supra) this court enforced the rule in a case where the facts were quite different from those appearing in the record now before us. In that case, however, the learned judge who spoke for the court evidently had in mind some case which might be considered an exception to the rule. That is the plain inference from the following paragraph of the opinion: “I do not mean to say that whether there has been a holding over at all may not some-times be so doubtful upon the facts as to require a submission to the jury. I mean to say that there is no such doubt in the present case. I reserve the question, also, whether there might not be an unavoidable delay in no manner the fault of the tenant, directly or indirectly, which would serve as a valid excuse. It is enough that here was a holding over not unavoidable, which might have been provided against, and where the chief difficulty grew directly out of the tenant‘s own wrongful act.”
In Jones v. Shears (4 Adol. & El. 832) the defendants had rented a coal mine for twenty-one years with the proviso that they might terminate the tenancy at any time by giving a previous notice to that effect. The term commenced in April, 1825, and four years thereafter the defendants gave the notice provided for. They, however, continued in possession for two months after the expiration of the time limited by the notice, working the mine. The landlord brought an action for the rent, claiming that the holding over gave him the right to treat them as tenants at the former rent. The defendants claimed that this holding over was not with any intent to waive the notice and renew the tenancy, and that they had the right to show the circumstances under which they so held over. Upon this question of intent they, therefore, proposed to show that the coal worked by them during those two months was taken from pillars of coal which supported the roof of the mine, and that it was customary for the tenant on leaving the mine to cut away as much coal as could with safety be removed. This evidence was allowed, and Coleridge, J., left
It is important to note with more distinctness the wide difference between this case and Haynes v. Aldrich (supra). In that case the tenant violated one of the covenants of the lease by sub-letting the premises. The sub-tenant held over after the expiration of the term and the tenant was sued for rent upon the principle that the holding over created a tenancy for another year. The tenant sought to excuse the holding over by the allegation that a distant relative of the sub-tenant, who was in possession, was detained in the house after the expiration of the term by sickness. This court held that inasmuch as the sub-letting was in violation of the lease and was a wrongful act on the part of the tenant, that he could not be excused by a situation which was plainly the result of his own violation of a covеnant of the lease. It is plain that the situation which it was claimed excused the tenant, was of his own creation by putting another party in possession of the premises. The holding over in that case was very properly attributed to the wrongful act of the tenant in putting a stranger into possession of the demised premises.
When a tenant for a year actually holds over after the expiration of the term, the legal consequences which follow are well settled and understood. The landlord may, at his election, treat him either as a trespasser or a tenant for another year, but in any case the fact of holding over must be established. The landlord cannot treat him as a tenant and collect the rent for another year, unless the facts are such as to justify him in proceeding against him as a trespasser. An act which might ordinarily constitute a trespass, when done or commit-
It may be said that this conclusion is a departure from precedent, but it is not easy to see how it is. No case has been cited and none has been found where it was held that such a state of facts, or such a situation as is disclosed by the answer, amounted to a holding over by the tenant within the meaning of the rule that is invoked by the landlord to sustain this action. Legal rules may sometimes be pushed to a point where they accomplish the grossest injustice, and it then becomes the duty of the courts to limit their application to cases that are within their true scope and fair meaning. We go no further than to say that, upon the facts stated in the
The judgment should be reversed and a new trial granted, with costs to abide the event.
MARTIN, J. This action was to recover seven months’ rent of a dwelling house situated upon Madison avenue in the city of New York. There was a lease between the parties by which the defendants rented the premises from May 1, 1894, for the period of one year, the rent payable in monthly installments in advance. The rent for that term has been paid. By this action the plaintiff seeks to recover rent for a portion of the succeeding year, on the ground that the defendants held over after the expiration of their term, and thus became liable for the rent of the premises for that time.
The facts are undisputed. The defendants alleged as a defense to the action the making of the contract or lease with the plaintiff; that in the month of February, 1895, before the expiration of their term, they notified the plaintiff that they would not retain the premises for another year, and that after such notice the plaintiff and his agents were permitted to show the premises and to place the usual notice “To Let” upon them, which remained during the balance of the term. The defendants then specially alleged that on May 1, 1895, the defendants were prevented from yielding up the possession of the premises by the act of God in afflicting their mother, who was a member of their family, with a disease which, at that time, previously, and subsequently including May fifteenth, confined her to her bed so that it would have endangered her life to take her from the house; that for that reason and no other, of which the plaintiff had full knowledge and notice, the defendants were obliged to and did occupy a small portion of the premises until May fifteenth; that all their property, furniture and belongings and their family were removed from the premises, and every part thereof on May 1, 1895, except
Upon the trial it was admitted that upon the first of February, 1895, the defendants notified the plaintiff that on the first of May they would give up and surrender the possession of the premises. That they were occupied under the lease was admitted, also the rate of rent, and the fact that the defendants from necessity held over after the expiration of the lease some fifteen days. The plaintiff then admitted the facts set up in the answer as to the impossibility of the defendants’ surrendering possession at the expiration of the year; so that the question presented is whether, notwithstanding the facts alleged in the answer, the plaintiff was entitled as a matter of law to recover rent for the succeeding year, upon the ground that the defendants held over after the expiration of their term.
The admission of the plaintiff amounts to a concession that by reason of the sickness of the defendants’ mother it was impossible for them to surrender up the possession of the premises to the plaintiff; that so far as it was possible they did so; and, hence, that their retention was wholly involuntary. If there was any doubt as to the question of impossibility it should have been submitted to the jury, and the defendants’ exception to the direction of a verdict was well taken. Thus, in a word, the question is whether that impossibility justified the defendants’ action, or whether, although it was impossible to surrender the entire premises, the holding of a small part for a few days imposed upon them a liability for rent for the succeeding year.
It is wеll settled that where a tenant voluntarily holds over after the expiration of his term, he may be held as upon an agreement to hold for a year upon the terms of the prior lease. (Conway v. Starkweather, 1 Denio, 113; Commissioners of Pilots v. Clark, 33 N. Y. 251; Haynes v. Aldrich, 133 N. Y. 287, 289.)
The basis of this liability is often said to be an implied
It is also well settled that where a duty or charge is created by law, and the performance is prevented by inevitable accident or the act of God, without fault of the party sought to be charged, he will be excused; but where a person absolutely and by express cоntract binds himself to do a particular thing which is not at the time impossible or unlawful, he will not be excused, unless through the fault of the other party. The reason given for the latter portion of this rule is that he might have provided by his contract against inevitable accident or the act of God. (Harmony v. Bingham, 12 N. Y. 99; Tompkins v. Dudley, 25 N. Y. 272; Dexter v. Norton, 47 N. Y. 62.)
Thus the most that can be said of the obligation that arises from the relation of landlord and tenant and follows by a general lease, is that the tenant is charged with the duty of vacating the premises at the end of his term. If he fails, it is a breach of his duty and ordinarily the law implies or creates a liability on his part for another year‘s rent. This being a duty implied or created by law and not by an express or absolute agreement, it falls within the first part of the foregoing rule, and, hence, it is obvious that if the tenant‘s removal was rendered impossible by inevitable accident or the act of God, he is excused for his omission to surrender the premises, at lеast so far as it creates a liability for a year‘s rent which is implied by law.
The reason for the distinction between the effect of impossibility of performance, occasioned by inevitable accident or the act of God, upon an obligation created by express contract, and upon an obligation which the law implies, has been held to rest upon the unwillingness of the law to at once
Moreover, the sаme result may be reached upon another ground. There are many cases where the courts have implied a condition in a contract to the effect that a party is relieved from its terms where its performance has, without his fault, become impossible. The principle upon which those cases are based is that, when the contract was made, the parties contemplated that the condition which subsequently existed might arise and render performance impossible, and that the implied condition is to be construed as a part of the existing contract, and thus relieves the party from liability in case that condition arises. (Dexter v. Norton, 47 N. Y. 62; Lorillard v. Clyde, 142 N. Y. 456, 462; Steward v. Stone, 127 N. Y. 507; Spalding v. Rosa, 71 N. Y. 40, 44; Taylor v. Caldwell, 3 Best & S. 826; Robinson v. Davison, L. R. [6 Ex.] 269; Kein v. Tupper, 52 N. Y. 550, 555; Dolan v. Rodgers, 149 N. Y. 489, 492.)
To hold in this case that this agreement was made upon an implied condition that the defendants should not be required to vacate the premises at the expiration of their term in the event that it was rendered impossible by inevitable accident or the act оf God is quite within the principle of the authorities cited. But, be this as it may, it is manifest that the charge or liability which the plaintiff seeks to enforce was created by law and not by agreement, and that as its performance was prevented without the defendants’ fault, they were excused from the onerous liability which the plaintiff now seeks to enforce.
It may well be, and doubtless is, true that the plaintiff may
These considerations lead me to the conclusion that the judgment in this aсtion should be reversed and a new trial ordered, with costs to abide the event.
Upon the trial no evidence was given; the facts being then and there stipulated between the parties. The plaintiff admitted that the defendants notified him, in February, 1895, that on the first day of May, 1895, they would surrender the possession of the premises and the defendants admitted that they remained over after the first of May without the assent of the plaintiff. The plaintiff admitted to be true the statement of
The question thus raised for our consideration is, whether the rule of law, which has always controlled in such cases, is to be affected by the fact that the holding over by the defendants was by reason of the illness of their mother, as a member of the family, and, therefore, in that sense, involuntary. The doctrine has been long a settled one in this state that a tenant who holds over his term, either, is a trespasser, or continues to be a tenant, at the sole election of the landlord, and that, in the latter case, the legal implication is that he holds at the former rent. As this appeal should be disposed of upon authority, I shall advert to a few cases and to the opinions which have been expressed. The question was early discussed in what may be regarded as the leading case of Conway v. Starkweather, (1 Denio, 113); where the tenant held over his term for the period of two weeks. Bronson, Ch. J., in his opinion, laid down the rule with considerable pertinency and said that “the tenant has no such election as that which belongs to the landlord. If he holds over, though for a very short period, without any unequivocal act at the time to give his holding the character of a trespass, he is not afterwards at liberty to deny that he is in as a tenant, if the landlord chooses to hold him to that relation. If the tenant may hold over for two weeks and then say he is not a tenant, I see no reason why he may not give the same answer after holding over as many months or years.” The plaintiff‘s counsel regards the holding over as only presumptive evidence of the continuance of the tenancy, which would have been sufficiently rebutted by the offered proof that the plaintiff, before his term ended, refused to keep the property another year, even
It seems to me that Judge Finch, in Haynes v. Aldrich, has given a convincing reason against importing any qualification into a well-settled rule of law, by which its application might be rendered uncertain according to the facts pleaded by the tenant.
Since the leading case of Conway v. Starkweather, I am not aware of any quаlification of the rule having been admitted and I think that if a case arises in which it operates harshly, the misfortune is one which, for the sake of the stability of the rule, should be borne by the tenant rather than by the landlord. The underlying principle is that the rights of the parties are determined by their engagements and effect must be given to the contract. The doctrine as settled by the decisions of the courts of this state obtains in many other jurisdictions. (99 Ill. 151; 3 Ohio, 294; 4 Md. 450; 9 Conn. 334; 2 Penn. St. 144; 69 Ala. 549.)
This is in no sense to be considered like a case where performance of a condition is prevented by the act of God; nor one where the discharge of an obligation was not fully intended by the parties. It is simply that of a contract which, by its terms, gave the occupancy and use of the premises of the owner for a specified term and under specified conditions; which fixed the rent to be paid and which contained the covenant of the lessee to quit and surrender the premises at the expiration of the demised term. The distinction is well settled between an obligation or duty imposed by law and that created by covenant of the party. In the former case, if the party is disabled from performing, without any default of his own, the law will excuse him. Illustrations of this are where waste to a tenement is caused by its destruction by tempest or by enemies; or where the contract is for personal services and the condition of continued existence is raised by implication. But where the party creates a duty by his own contract, he is bound to make it good, notwithstanding any accident by inevitable necessity; because he might have provided against
Of course, there was nothing to submit to the jury and the defendants did not request a submission. All the facts for a judgment were stipulated, when the case came on for trial, and they presented the one question for the court, whether, in law, they established the plaintiff‘s right to the rent demanded.
I think the judgment should be affirmed, with costs.
O‘BRIEN and MARTIN, JJ., read for reversal, etc.; PARKER, Ch. J., and HAIGHT, J., concur.
GRAY, J., reads for affirmance, and BARTLETT and VANN, JJ., concur.
Judgment reversed, etc.