| N.Y. App. Div. | Jun 15, 1900
Lead Opinion
This action was brought to recover for rent, claimed to have accrued in favor of the plaintiff because the defendants .held over in possession of a house (which they had leased from the plaintiff) after the expiration of the lease on the 1st of May, 1895. The letting seems to have been by parol; that it expired on the 1st of May, 1895, and that the defendants stayed in the house until the fifteenth of May is not denied. Because of these two facts the plaintiff claims to be entitled at his option to consider the lease extended for another year upon the same terms as the previous year, and to recover the rent down to the time of the bringing of the action, which -was in November, 1895. At the first trial the plaintiff was
Upon that point undoubtedly the decision of the Court of Appeals is binding in all future trials of the case. The majority of the court delivered two opinions, and so far as the majority concurred in the reasoning of those opinions, and in the principles announced as the basis for the conclusion which they reached, those principles are, as the result of their .determination, binding upon us in the consideration of this appeal.
When the case was before the Court of Appeals it appears to have been a conceded fact that the defendants were prevented from vacating the premises upon the expiration of their lease because of the serious illness of their mother, who was one of their family. Her condition was such that any attempt to remove her on the first of May would undoubtedly have resulted in her death; and it was also conceded that the defendants removed from the house on the earliest possible day when that condition had ceased to exist. Upon these facts the majority of the court agreed that the holding over was not wrongful and that the defendants were not trespassers, because as the duty to remove from the premises upon the termination of the lease was not one arising from any. express. contract between the. parties (because there was no written lease), but only one implied by law — the rulé which relieves a party from the performance of a duty created by law when that duty is rendered impossible by an act of Grod or by an unavoidable accident through no fault of the party himself, was to be applied; and for this reason the defendants were not liable for a year’s rent. To what extent they were liable was not determined by the Court of Appeals because that question was not presented for decision, but it É now presented and must be decided.
The serious illness of the mother; the unavoidable holding over by the defendants in consequence thereof until the fifteenth of May; their removal upon that day, the earliest upon which it was possible to do so — Ml these facts were made to appear on the second trial
Upon this state of facts, the defendants contend that, having vacated the house on the fifteenth of May, and having mailed the keys ■ to the plaintiff’s agent, they were relieved from paying rent after that day. - The plaintiff contends that although the house may have been .vacated on the fifteenth of May,, yet it was the duty of the defendants to give her actual notice of that fact and of the surrender of the house to her, and that until that actual notice was received by her she was entitled to hold them liable for the rent. The learned justice at the Trial Term held that the mailing of the keys was a sufficient notice of the fact of the surrender, and that, therefore, the plaintiff was entitled to recover rent only to the' fifteenth of May. The rent due to that time being less than fifty dollars, its amount, forty-nine dollars; and twenty-nine cents, was deducted from the costs, and judgment was entered for the defendants for their costs in excess of the amount so recovered.
The first question presented by this appeal is, what was the nature of the defendants’ liability after their holding over ? The Court of
But the same considerations which in ordinary-cases would entitle a landlord to insist upon the liability of a tenant for a year’s rent, upon his holding over,, apply, I think, to this case, to authorize him to insist that the term is continued until the premises are surrendered,, and that he is- liable for rent until that time, although not liable for a full year’s rent, as the Court of Appeals has held. The same-principle applies as when .one converts property of another to-his own use, in which case the owner, if he does not see fit to insist upon a tort, may sue for the price of it upon an implied contract, of sale.
The question then arises, how long did this liability continue; and that is to be decided by considering what was the duty of the defendants in surrendering the premises. They were in possession because of an unavoidable necessity which required their remaining, and it follows that just so long as that condition lasted, just so-
It was clearly then the duty of the defendants to give the landlord notice of their intention to leave the premises. (4 Kent Comm. [10th ed.] *103, 130; Ellis v. Paige, 2 Pick. 71, note. See, also, Rorbach v. Crossett, 19 N.Y.S. 450" court="N.Y. Sup. Ct." date_filed="1892-06-23" href="https://app.midpage.ai/document/rorbach-v-crossett-5502973?utm_source=webapp" opinion_id="5502973">19 N. Y. Supp. 450; Ludington v. Garlock, 9 id. 24; Adams v. City of Cohoes, 127 N.Y. 175" court="NY" date_filed="1891-06-02" href="https://app.midpage.ai/document/adams-v--city-of-cohoes-3597297?utm_source=webapp" opinion_id="3597297">127 N. Y. 175; 53 Hun, 260" court="N.Y. Sup. Ct." date_filed="1889-07-06" href="https://app.midpage.ai/document/adams-v-city-of-cohoes-5497059?utm_source=webapp" opinion_id="5497059">53 Hun, 260.) .Was a sufficient notice given by the deposit of the keys of the house in a post office box on the street corner, although they were received by the plaintiff’s agent two weeks after such mailing? It seems that the parties had been accustomed to pay and receive the rent in that way, and wh.en the rent was received by the plaintiff through the post office department, it was acknowledged and, as thus received, accepted. Whether that made the post office department the.agent of the plaintiff or of the defendants is a matter of no importance, nor material in this controversy. But there is considerable difference between a permission to use the mails as a means for the payment of rent and a permission to use them to give notice of the termination of an estate. In the one case it is undoubtedly a business transaction such as takes place every day; in the other, it is a proposition to give up the possession of premises which have been lawfully held by the defendants, and which the plaintiff is entitled to take possession of because the defendants’ right to hold them is át an end. • The notice to which the plaintiff was entitled was such as would enable him to assert his rights of ownership and- take possession of the house. Whenever a party is entitled to such a notice,
There is no doubt of the. existence of this rule, and applying it to the present case, the defendants were bound to'give to the plaintiff personal notice of the fact that the house had been vacated, and bound at their own peril to see that the plaintiff actually received, that notice so that he could take posesssion óf it and protect it. Until that was done, they had not relieved themselves of the obligation which their holding over entailed upon them. There is no claim that any notice was given until the beys were delivered to Mrs. Herter by the postmistress at Onteora on the second of June. Therefore, it seems to me that the defendants had not,-during that time at least, performed their duty of giving a notice of their surrender of the premises to the plaintiff, and that he was entitled t-o insist that the rent to that time should be paid.
For that reason the decision of the learned trial justice at the Trial Term was incorrect, and the plaintiff should have been permitted to recover rent at least until the 2d of June, 1895, and the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the result.
Patterson, J., concurred; Ingraham, J., concurred in result; McLaughlin, J., dissented.
Dissenting Opinion
(dissenting):
The action was brought to recover rent alleged to be due under á lease. The plaintiff had a verdict, and from the judgment entered thereon he has appealed. ' ' •
The complaint, except" the formal parts of it, was as follows:
“ Second. That on ór about March 9, 1891, plaintiff rented to the defendants, and they hired and took from him, a certain portion of*331 the dwelling house known as No. 2046 Madison avenue, in the city of New York, from May 1, 1894, at the yearly rent of Nine Hundred and Twenty-five' ($925) Dollars, payable in equal monthly installments on the first day of each month, in advance.
“ Third. That said defendants took possession of said premises on or about May 1, 1894, and have continued in possession thereof ever since.
“ Fourth. That the defendants have not paid the monthly instalments for rent for May, June, July, August, September,.October or November, 1895, amounting to Five Hundred and Thirty-nine 59/100 ($539.59) Dollars.”
Judgment was demanded for this amount.
The answer admitted that, at the time stated in the complaint, the parties entered into an agreement by which the defendants hired from the plaintiff the premises referred to for one year — May 1, 1894, to May 1, 1895 — and alleged “that on May 1, 1895, these defendants were prevented from yielding up possession by the act of God in afflicting the mother of these defendants, who was a member of the family of defendants, with a disease which, on said date and for some time previous thereto, and to and including May 15, 1895, confined her to her bed, and which disease and affliction was so great that it would have endangered her life to have taken her from her said room in said house referred to in plaintiff’s complaint — her life would have been imperilled or her disease aggravated, and that for this reason and no other, of which plaintiff had full knowledge and notice from these defendants, defendants were obliged to and did occupy said premises until May 15, 1895, and no longer; that all property, furniture and belongings of defendants and their family were removed from said premises and each and every part thereof, on May 1, 1895, except from the sickroom, or bedroom, in which their said mother was confined, and defendants were forbidden by the physicians in charge from moving or in any manner disturbing their mother until' May 15, 1895, when she was removed.” ■
The answer further alleged that on the 15th of May, 1895, possession of the premises was surrendered to and accepted by the plaintiff.
Upon the issues thus raised two trials have been had. At the first the facts were agreed upon — and they were substantially those alleged in the answer — except the allegation that .plaintiff accepted
At the second trial substantially the same facts which were agreed upon at the first trial were established by the evidence introduced — that the mother was a member of the defendants’ family; that her serious illness rendered it impossible for defendants to entirely remove from -the premises on the first of May; that they did remove all of-their property and effects from the premises on that day, except from one room in which the mother was confined; and they removed entirely from that on the fifteenth of May, "which was the earliest day that the attending physician Would permit her to be moved.
In addition to these facts it was also made to appear, by testimony-offered on the part of the defendants, that upon the day the mother was removed- from the house the keys thereto-—two in number — were attached to a tag, addressed to the plaintiff’s agent at 8Í1 Madison avenue, and sent to her by mail, with the postage prepaid thereon ; that she was accustomed to receive mail there, the defendants having sent to her at that place checks in payment of the rent under the lease. The plaintiff’s agent testified, however, that she did not receive the keys until the second or third of June, and as tending to explain this fact, it was shown that she left the -city of .-Row York early in May, and before leaving gave directions to the post office authorities to forward her mail to Monmouth Beach — the place to which she went, and where she remained until the fifteenth of May, when she returned to and remained in the city of Rew York until the twenty-first of that month, when she again left and went to Onteora, where she remained until the tenth of June,.
It also appeared that on or about the sixteenth of May the plaintiff’s agent (the exact date she was unable to state) received the following letter, addressed to her at her. residence, 841 Madison avenue: ■
“ Hew York, May 16, 1895.
" Mrs. Mary Herter,
“ 841 Madison Ave.:
“Madame.— Your house, 2046 Madison Ave., is now vacant. Kindly send your account.
“Mrs, MARGARET MULLER,
“J. M.”.
At the close of the trial the plaintiff moved for the direction of a verdict for the amount claimed in the complaint, which was denied, the trial court holding that the defendants were only liable for rent from the first of May to the time when they surrendered possession,, and that if such surrender was made on the fifteenth of May, then "the plaintiff was only entitled to recover for fifteen days’ rent, and ' when the surrender actually was made was a question of fact to be determined by the jury. No exception was taken to this ruling, and the case was thereupon submitted to the jury with instructions to this effect, the learned trial justice, among other things, saying: " This question of surrender is the one that goes'to you for determination ; and the determination of the case hinges upon your finding on that subject. If you find, as matter of fact, that the keys were tied together, a tag attached to them, and addressed to the-landlord at her residence on Madison avenue, postage thereon prepaid, and that they were properly deposited in the post office on May 15th, 1895, the surrender by the defendants was complete -on the receipt at the landlord’s house of those keys, and there was no liability for the rent after that time; that is,.after the time .the keys reached the landlord’s home on Madison avenue. * * * If the keys were mailed on May 15th and reached Mrs. Herfcer’s house on that day, find for the plaintiff for $49.29,. the rent for fifteen days with the interest included.' If the keys were not mailed until the latter part of May, find in favor of the plaintiff for one month’s rent and interest, together maidng $77.08.”-
We have presented, then, a case which was submitted to the jury with instructions that if they found certain facts to be established,' to return a verdict for a given amount. They returned a verdict for that amount and there is some evidence to sustain the finding, and how a judgment entered upon that verdict can be reversed, when no exception was taken to the charge, and there is' no certificate in the case that it contains' all the evidence, I am unable to understand. . ' . ■
But upon the merits, I think this judgment is right and should he affirmed. Applying the rule of law laid down by the Court of Appeals, when this case was before it, to the facts established upon the trial, it must be held that the relation of landlord and tenant did not exist between the plaintiff and .the defendants after the 1st of May, 1895. The Court of Appeals held that the defendants were not, after the first of May, holding over, within the meaning of the rule which permits the landlord to continue the lease and recover rent according to the terms of it. Judge O’Brien, who delivered the prevailing opinion, said: “ 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
If it is true, as Judge O’Bbien says, that there was not “ a holding over within the meaning of the law ” after the first of May, then it necessarily follows that the relation of landlord and tenant, which had previously existed between the parties, terminated on that day. If it did terminate on that day, it certainly did not thereafter exist, because it is not claimed that a new lease, either written or paroi, was entered into by them, at or subsequent to that time, and nothing was thereafter done which was sufficicient to restore that relation between the parties.
According to the prevailing opinion, the defendants, because they did not personally deliver the keys to the. plaintiff’s agent on the fifteenth of May, continued in possession until such delivery was made, and were, therefore, liable for a month’s rent, at the rate stipulated in the lease. If the conclusion there reached be correct, then the plaintiff is entitled to recover, not for one month’s rent, but for a year’s rent. A voluntary holding over for fifteen days, under, all of the decisions, so far as I am aware, gives the landlord the option of treating the person holding over as a trespasser, or to waive the trespass and treat him as a tenant. Here, the plaintiff
This seems to. me to be the reasonable rule or-measure of damages where a tenant is prevented, either by act of God, or other circumstances over which he has no control, from surrendering possession at the expiration- of his lease. For this occupation the landlord gets all that he is entitled to.. If. he has sustained damage by reason of the occupation, in addition to the use, he gets that. He ought; not, under such circumstances, to recover more, or be compelled to accept less. This, evidently, was the view entertained by the Court of
But even treating this action (and I do not see how it can be) as ■one brought to recover damages caused by the.defendants’ failure to surrender possession of the premises at the expiration of the lease, then the plaintiff is not in a position to complain of the verdict. There is no dispute but that the defendants used and occupied the premises from the first to the fifteenth of May, a period -of fifteen days, and they thereby became obligated to pay what the premises were reasonably worth for that time. The lease was the •only evidence offered by which the .jury could arrive at the value o'f the use and occupation, no attempt being made to establish any other damages, and they having used this as a basis for their verdict, and having found in favor of the plaintiff for the sum of forty-nine •dollars and twenty-nine cents, the amount of rent for fifteen days as fixed by the prior lease,, their verdict ought not to be disturbed, because plaintiff has received all he is entitled to. This assumes that the defendants surrendered possession on the fifteenth of May, and I am of the opinion that what they did constituted, in law, under the facts here presented, a valid surrender. They had been in the habit of paying to the plaintiff’s agent their rent by mail. The keys were sent to the same person, at" the same place, with the postage prepaid. They reached that place and were, by the direction of the plaintiff’s agent, sent to another place, either Monmouth Beach or Onteora, which was the cause of the delay in her personally receiving them. "Whether they were remailed after reaching the plaintiff’s residence in the city of New York, or at Monmouth Beach, does not appear. It does appear, however, that they were remailed after they were sent by the defendants, because when they
I 'cannot assent to the proposition that a tenant cannot surrender possession of .premises, after the expiration of his lease, without personally delivering the keys to the landlord. If this doctrine be true, then a tenant who is unable by reason of circumstances over which he has no control, to surrender possession of. the premises ón the expiration of the lease, can be compelled to keep them for another year, by the landlord’s secreting himself,' leaving the State, or.preventing, in any way, the tenant from personally delivering the keys to him. There is not, and manifestly cannot be, such an unjust and unreasonable rule.
In the case before us, can it be said that the defendants .were obliged to follow the plaintiff’s agent into' another State ? Manifestly not. What, then, could they do to surrender possession ? Take the keys to the residence of the plaintiff’s agent, leave them with some person in charge, or mail them to her there, and if they •reached their destination, that moment' the surrender was complete.
For these reasons I am unable to concur in the opinion of the majority of the court.
Judgment and order, reversed, new trial ordered, costs to appellant to abide event.