4 N.Y.S. 195 | New York District Court | 1888
In February, 1887, the plaintiff let to the defendant the store floor of the house No. 72 Mott street, for the term of one year from May 1, 1887, at the annual rent of $540, payable in equal monthly payments, in advance. The defendant sublet the premises to one O’Brien, and on February 13, 1888, wrote to the plaintiff, stating that they regretted that the store had been quite a loss to them, inasmuch as their tenant had not been able to pay any rent, and therefore could not afford to renew the lease on like terms as theretofore. The plaintiff soon thereafter put a bill upon the premises “To Let,” which he removed, however, on May 1, 1888, not having let the premises in the mean time. The store remained locked, the keys were not delivered up to the plaintiff, and the fixtures of the under-tenant, upon which the defendant had a mortgage, remained upon the premises. The plaintiff, finding the premises locked, with the property of the under-tenant remaining therein, took no proceedings to dispossess his tenant, but in June, 1888, brought this action to recover rent for the months of May and June, on the alleged ground that there was an implied hiring for another term.
The application of the rule above stated may, in this instance, be a harsh one, but the rule itself is founded in reason, and, in my opinion, rests upon sound principles. It is within the power of a tenant to sublet his premises to -whomsoever he pleases, but he should be held answerable for the consequences that may follow from the acts of the person he places in the possession of the property of the lessor. If the under-tenant wrongfully holds over, his immediate landlord rhay at once institute summary proceedings for his removal. It is possible that if such proceedings were diligently ^conducted, and possession yielded up in consequence to the original lessor, the latter’s tenant may be absolved from the liability he would otherwise be under, although I am not prepared to say that even this would be a defense. But the tenant cannot place a third person in possession during the demised term, and then passively permit a continuance of that possession, without being