151 N.Y.S. 796 | N.Y. App. Div. | 1915
Lead Opinion
The property in question was owned by one Ellsworth, who died the 18th of January, 1873, leaving a last will and testament by which he devised certain real property known as Nos. 146, 148 and 150 West Twenty-ninth street, in the city of New York, to his daughter, Sarah Hinton, for life, remainder over to her children, who were the plaintiffs in this action.
On November 1, 1901, Sarah Hinton, the life tenant, leased the premises to defendant for a term of ten years, at a yearly rent of $1,800, and defendant also agreed to pay all taxes and assessments that might become a lien on said premises during the term of the lease, with an option to renew for a further •term of ten years at the same rent and on the same terms, providing, however, that defendant should notify the landlord on or before October 1, 1911. Defendant entered into possession of the property under this lease and continued in possession up to the time of the trial of this action. Sarah Hinton, the life tenant and lessor, died January 30, 1906, whereupon plaintiffs became vested with the property. Defendant continued in occupation of said premises after the death of Sarah Hinton as tenant at will of plaintiffs until May 1, 1910, and paid rent at the times and amounts provided for in said lease, and also paid the taxes and assessments for the years 1907, 1908 and 1909, as therein provided. On or about March 23,1910, plaintiffs served on defendant and the undertenants a notice to quit on or before May 1, 1910. Defendant, however, refused to surrender possession of the premises on May 1, 1910, whereupon plaintiffs commenced proceedings in the Municipal Court to recover possession of the premises, and on the 21st of June, 1910, a final order was made and entered in the said pro
The conclusions of law as stated in the court below are modified accordingly, and judgment directed for the plaintiffs for the amount paid by plaintiffs for the taxes for the years 1911 and 1912, with interest and costs. '
McLaughlin and Dowling, JJ., concurred; Laughlin, J., dissented.
I think the appeal must prevail, but I cannot reach this result by the course of reasoning adopted by the presiding justice.
Beginning with August 4, 1910, defendant’s payments to plaintiffs were accompanied by a written communication, to which plaintiffs commonly responded, and it is to this correspondence that both parties appeal as evidence of their respective rights. In a letter from defendant’s attorneys to plaintiffs’ attorneys dated August 4, 1910, they say “ to avoid any suit against our client * * * for use and occupation of the premises, * * * possession of which was awarded your clients by the recent order of * * * the Municipal Court, from which order an appeal has been taken and is now pending, we hand you * * * our check for $450, which payment is made and shall be deemed to be accepted by your clients
To avoid defendant’s rights under the lease it was not necessary that a warrant should have been issued. An abandonment of the premises would have worked the same result. (Gallagher v. Reilly, 31 N. Y. St. Repr. 556; Ash v. Purnell, 32 id. 306; Boehm v. Rich, 13 Daly, 62.) But actual abandonment was not necessary. It was sufficient if the parties did some act so inconsistent with the subsisting relation of landlord and tenant as to imply an agreement to surrender. As shown
Dissenting Opinion
I think the judgment of the trial court was right, and that in any event this is not a case in which the judgment should
The action is not for use and occupation, but for a breach of the provisions of the lease, it being alleged that the defendant failed to pay the taxes as agreed therein, and that the landlords were obliged to pay them; and the action is to reimburse them therefor. It was held by the Appellate Term, on an appeal from an order granting judgment for plaintiffs on the pleadings in a former action for the same relief, which was subsequently discontinued, that if the defendant proved the allegations of his answer to the effect that notice was given by the landlords terminating the tenancy at will, and that this was followed by dispossess proceedings which resulted in a final order in favor of the landlords, upon which, however, no warrant was issued, and that the defendant held over thereafter, the lease ceased to be binding and he was under no obligation thereunder to pay the taxes and would be liable therefor only by virtue of some new agreement, express or implied. (Hinton v. Bogart, 79 Misc. Rep. 418.) It is conceded in the prevailing opinions that the defendant is not liable on the lease, and that his only liability is for use and occupation; but it is contended therein that the rent reserved by the former lease and the obligation of the tenant to pay taxes thereunder are evidence of the value of the use and occupation. Undoubtedly, the lease would be competent evidence of the value of the use and occupation, if that were an issue in the case, hut it would not be conclusive evidence on that point, and defendant might well claim that the quarterly payments he made for use and occupation “without prejudice” constituted the fair and reasonable value of his use and occupation. But, as I view it, there was no issue with respect to the value of the use and occupation presented by the pleadings or litigated upon the trial.
In the circumstances, therefore, I am of opinion that the plaintiffs are not entitled to recover in this action, which was brought and tried upon the theory that the defendant was liable for the payment of the taxes by virtue of the provisions of the lease.
I, therefore, vote to affirm the judgment.
Judgment reversed and judgment ordered for plaintiffs as directed in opinion, with costs. Order to be settled on notice.