52 N.Y.S. 385 | N.Y. App. Div. | 1898
This action was brought to recover rent for the use and occupation of certain real estate situate in the city of New York. The answer admits the hiring, use and occupation by the defendant of the premises, but alleges as a defense that, by virtue of an act of the Legislature, and proceedings taken thereunder, the plaintiff was, prior to the time the rent accrued, divested by an order of the Supreme Court “ of all her right, title and interest of, in and to the premises in the complaint described, and of and from all right and title to the rent thereof, and that an award for such right, title and interest so taken and divested from the plaintiff was, by said order and proceedings, made to her, and that the plaintiff had duly accepted
No rule of law is better settled than the one that a tenant cannot dispute the title of liis landlord. This rule is based upon the principle that a tenant, by going into possession, admits the title to be in the one from whom he has acquired that right, and, therefore, he is estopped from disputing it. But it is equally well settled that a tenant, when called upon to pay rent, can show, if such is the fact, that the title to the premises occupied by him was terminated after his tenancy commenced, either by the act of the landlord himself, or by the judgment of a court of competent jurisdiction. (Jackson v. Rowland, 6 Wend. 666 ; Despard v. Walbridge, 15 N. Y. 374; Hoag v. Hoag, 35 id. 471; Hetzel v. Barber, 69 id. 15.) The defense here demurred to alleges the termination of the plaintiff’s title by a judgment of a court of competent jurisdiction at a time subsequent to the lease and prior to the time the cause of action alleged in the complaint accrued. That such facts, if established upon the trial, would constitute a defense seems to me to be beyond question. There would be neither justice nor reason in a rule which would permit a party to collect rent for the use and occupation of lands which he does not own. When, therefore, as here, the estate of the landlord in the whole of the demised premises, as well as that of the tenant, has been extinguished by condemnation proceedings instituted on the part of the city before the rent sued for accrued, it must be held that the right of the landlord on the one hand to collect, and the liability on the other of the tenant to pay, ceased the moment that the title of the land passed to the city. The cases of O'Brien v. Ball (119 Mass. 29) and Corrigan v. City of Chicago (144 Ill. 537) are directly in point. In the former case the city of Boston, under an act authorizing it, acquired title to a tract of land which had been leased by O’Brien to Ball, and the title of
The demurrer was also properly overruled for the reason that the statute relating to condemnation proceedings in the city of New York expressly provides that, when land is thus taken, the obligation of the tenant to pay rent is discharged. Section 982 of the Consolidation Act, so called (Chap. 410, Laws of 1882), provides that “in all cases where the whole of any lot or parcel of land or other premises under lease or other contract shall be taken for any of the purposes aforesaid * * * and engagements between landlord and tenant or any other contracting parties touching the same or any part thereof, shall upon the confirmation of such report in the premises as shall be confirmed by the court aforesaid, respectively cease and determine and be absolutely discharged. * * * ”
That part of the defense demurred to comes directly within this provision of the statute, and, if the defendant can establish upon the trial what he has alleged, it cannot he seriously questioned but that it will constitute a defense to the action.
It follows that the judgment must be affirmed, with costs.
Barrett, Rtjmsey and Ingraham, JJ., concurred.
Judgment affirmed, with costs.