132 N.Y.S. 379 | N.Y. App. Term. | 1911
This is a summary proceeding to recover the possession of real property on the ground of the non-payment of rent. The proceeding resulted in a final order in favor of the landlord. The petition is dated June 29, 1811, and alleges that there was-then due and unpaid the sum of $5,000 which had accrued as rent during a period beginning Sep
Although the record in this- case discloses several erroneous rulings excluding proper evidence offered on the part of the tenant, it appears that, in October, 1909, the tenant tendered the rent then due in cash, and that the landlord refused to accept it, and subsequently, at the end of each month, the tenant sent a check for the rent then due to the landlord or her agent, and that in each instance the check was returned and its acceptance refused. The checks themselves were offered in evidence by the counsel for the tenant, in order to show that the tenant made a bona fide attempt to' pay the rent reserved- in the lease as it accrued; but, upon objection being 'made that the checks were “ incompetent and irrelevant,” the court excluded them. The tenant also established that the landlord had commenced an action of ejectment to recover the possession of the preñases in question, on the ground of condition broken in the failure to pay rent, and that the landlord had also brought an unsuccessful summary proceeding against the tenant on the alleged ground that the latter was holding over after the expiration of Ms term. If we disregard the errors in the rulings upon the quéstions of evidence and attempt to get at the merits "of the case, we must first consider whether the landlord, prior to the institution of the present proceeding, had elected to pursue a remedy inconsistent with the institution of this proceeding. “ The doctrine of election, usually predicated of inconsistent remedies, consists,” said Judge Gray in Mills v. Parkhurst, 126 N. Y. 89, 93, “in holding the party, to whom several courses of action were
The action of ejectment which the landlord instituted against the tenant was upon the ground of condition broken, and the institution of such an action necessarily terminated the relation of landlord and tenant. At common law, when the landlord sought to take advantage of a breach of condition, which breach worked a forfeiture, he made an entry upon the land. The theory upon which this was done was that it required as solemn an act to defeat as to create an estate. The effect of such an entry was “ to reduce the estate to the same plight, arid to cause it to be held on the same terms as if the estate to which the condition was annexed had not been granted.” 2 Washb. Real Prop. 14.
It is now provided, by section 1504 of the Code of Civil Procedure, that “ When six months’ rent or more is in arrear, upon a grant reserving rent, or upon a lease of real property,
In commenting upon the provision of the Revised Statutes referred to, Dwight, C., in Samson v. Rose, 65 N. Y. 411, 417, said: “ In the lease in controversy in the present case, there was an express agreement that the landlord might reenter for non-payment of rent. If there had been an actual re-entry for condition broken at the time when the action of ejectment was brought, the title of the Tripps (tenants) would have 'been defeated ab initio, .and the land, with all its accretions, would have been vested in' the plaintiff. As the-commencement of the action is made, by. the above cited statute, equivalent to a re-entry, the landlord must be conclusively presumed to have taken possession at the moment of the service of the complaint in this action.”
When the right of distress for rent existed, it was repeatedly held, both in England and in this State, that the landlord, after treating the occupier of the land as a trespasser by suing him in ejectment, could not afterward distrain upon him for rent. Bridges v. Smyth, 5 Bing. 410.
In Jones v. Carter, 15 Mees. & Welsb. 718, it was held that, when a lessor served a declaration in ejectment upon the lessee, he could not sue for rent or covenants broken, although the action of ejectment had not been determined. In the course of the opinion in that case, Baron Parke said: “ Without inquiring whether an ejectment be a real action, the bringing of which and the counting in which would, according to the authority of Lord Coke, be a determination of an election between two remedies, it seems to us that so distinct and unequivocal an act must, independently of any technical reason, be a final determination of the landlord’s option; for after such an act, by which the lessor treats -the lessee as a trespasser, the lessee would know that he was no longer to
The remarks of Chancellor Walworth in Stuyvesant v. Davis, supra, are significant in this connection. That was a case where the landlord had commenced an action of ejectment against his tenant to enforce a forfeiture for the nonperformance of a condition of the leas.e and then commenced an action in equity to restrain the tenant from collecting and the sub-tenant from paying to the tenant any rents due or to become due. In the course of his opinion the chancellor said: “ If the complainant elects to proceed at law to enforce the forfeiture of the lease, for the non-payment of the taxes and assessments, he cannot in the meantime treat the lessee as his tenant and rightfully in'possession of the premises, so as to obtain an equitable claim to the accruing rents by virtue of his lease. For by bringing an ejectment suit for the forfeiture, he has chosen to treat the lessee and his su'b-tenants as trespassers, from that time. The claim to the accruing rents, therefore, is wholly inconsistent with his proceeding at law to enforce the forfeiture.” Again, in the same opinion, the chancellor said: “ While the landlord is proceeding in his ejectment suit to enforce the forfeiture, this Court will not entertain a- bill to give to him a remedy for the recovery of his rent, or his damages for the non-payment of the assessments ; which remedy is wholly inconsistent with that proceeding.”
In serving a complaint in an action of ejectment upon the tenant, in which the landlord claimed a forfeiture and a termination of the tenant’s estate, the landlord irrevocably precluded himself from subsequently asserting that the relation of landlord and tenant existed between him and the tenant. The ejectment action commenced in September, 1909, treated the tenant as a trespasser. The assumption of such a position was absolutely inconsistent with the assertion by the landlord in this proceeding that the relation of landlord and tenant was existing in June, 1911, when these proceedings were instituted. The ejectment action dis-
The court below held that the commencement of the ejectment action was not inconsistent with maintaining summary proceedings to dispossess the tenant on the ground “ that the proof of an action in equity by the landlord in this proceeding cannot be held to be an election on her part.” It is sufficient to overcome this reasoning, to assert the elementary proposition that the action of ejectment is.an action at law and not in equity. Bor is the case of Houston Mercantile Co. v. Powell & King, 72 Misc. Rep. 358, at all analogous to the case at bar, as the court below supposed. While it is true “ that an election of remedies is determined by the commencement of an action and not by the result of it ” (Matter of Garver, 176 N. Y. 386), the doctrine of election applies only when a choice is made between two remedies which proceed on opposite and irreconcilable claims of right. In the case of Houston Mercantile Co. v. Powell & King, supra, the court held, merely, that there was no such irreconcilability between an action in equity asking the court to declare a lease annulled and the institution of dispossess proceedings, because the action to have the lease annulled was not equivalent to a rescission of the lease. In the cas© at bar, the natures of the remedies pursued by the landlord are entirely different. The legal effect of the commencement of the action of ejectment on the ground of condition broken is, both in legal theory and by statutory enactment, equivalent to an actual re-entry by "the landlord and terminates ab initio the estate of the tenant. If, in spite of such termination of the tenant’s estate, he continues to remain in possession, the law provides the method for his dispossession by writ of assistance which, as a matter of right, will follow the rendition of a judgment in favor of the landlord in the action of ejectment. Summary proceedings cannot, under such circumstances, be invoked against the tenant on the ground" of his failure to pay rent, because such a proceeding can "only be predicated upon the existence of the relation of landlord
We -are of the opinion, therefore, that the institution of the action of ejectment constituted an election by the landlord to pursue m remedy inconsistent with the right to maintain summary proceedings and that such election constitutes a bar to the present proceeding.
. The counsel for the landlord contends that, even though there has been an election of remedies, the landlord is entitled to a final order in her favor because of the non-payment of rent by the tenant. This" proposition is self-contradictory. If there has been an election of remedies by the landlord by-reason of the commencement -of the action of ejectment, such an election necessarily precludes the landlord from instituting this proceeding. The landlord ’being thus barred from instituting this proceeding, it is incomprehensible that she is entitled to a final order in her favor. If, however, for the sake of argument, we treat this proposition as a paradox, it does not aid the landlord. The evidence shows that the tenant tendered the rent, and that it was refused, tad that he subsequently sent the rent to the landlord at the end of each month, and that it was each month returned to the tenant. On one occasion when the rent was tendered in cash to the' landlord she refused to accept it, saying: “ I have already received the rent.” And, upon being asked at that time from whom she had received it, she replied: “ I don’t- know who it was, but I know my son-in-law called on me and said he was given a check for the month’s rent and deposited it at the Northern Bank to my account.” On the trial an attempt was made by the counsel for the tenant to ascertain who it was who had paid the rent, but this attempt wias • frustrated by the rulings of the trial judge. While payment by one of the debt of another does not operate to
In Sheppard’s “ Touchstone ” (p. 142) it is said: “ If lands be granted, on-condition to pay money, and the money is tendered according to the condition, but either nobody is ready to receive it, or it is' refused; this is a good performance of the condition. And after a man hath once refused the money so. tendered to him according to. the condition, he hath no remedy in law to recover it, except it be money lent upon a mortgage.”
Ifi view of the tender and willingness of the tenant to pay the rent and the repeated refusals to accept it by. the landlord, we think that it is evident that she should not he permitted to predicate proceedings to dispossess the tenant upon the fact that the rent has not been paid.
Counsel for the respondent insists that the final order rendered against the tenant and in favor of the landlord cannot be disturbed. Thus, in his 'brief, he says: “If it were true that the ejectment would bar these proceedings and that these proceedings (by demand necessary in order to bring them) bar the ejectment, we would then have the curious situation in which the landlord would be without possession. without rent and without a remedy to procure either. She could not get possession by ejectment, since demand for rent and the summary .proceedings would bar her. She could not get her rent, since there would be no lease and no rent would be due; neither could she for the same reason have recourse to summary proceedings.”
We do not think that this statement accurately describes the situation of the landlord.
If, however, the counsel for the landlord correctly describes the situation of his client, her present position is the result solely of her own acts and. her effort to pursue inconsistent and irreconcilable remedies; and we are under no obligation
In ejectment she claims the lease, terminated in September, 1909, while in these proceedings she asserts that it was valid and subsisting in June, 1911. By reason of her inconsistent and vexatious course, she has involved her tenant in legal difficulties from which she now insists he shall not •be relieved because, if he is, she can think.of no new course open to her which would not be inconsistent with some attitude which she has already assumed. In view of the conclusions which we have reached, it is unnecessary for us. to consider the ruling of the trial judge in dismissing the defendant’s counterclaim.
It follows, therefore, that the final order appealed from should be reversed and the proceeding dismissed, with costs to the tenant.
Guv and Oohalaw, JJ., concur.
Pinal order reversed and proceeding dismissed, with costs to tenant.