26 Barb. 41 | N.Y. Sup. Ct. | 1857
In 1852 the plaintiff, Manice, leased to one Stone two lots of land in the city of Hew York, for ten years ffom 1st of May, 1852, at a certain rent, payable quarterly ■ with the proviso that if the rent should be in arrear, or if default should be made in any of the covenants therein contained on the part of the lessee or his assigns to be performed, the lessor might re-enter. The lessee covenanted that he and his assigns would pay the rent, and would also pay and discharge all such taxes, (including the Croton water tax,) as during the said term thereby demised should be imposed, or grow due or payable out of the said premises. The lease was assigned to the defendant. This action was brought to recover possession of the lands, for non-payment of taxes. The complaint states that there are now due and payable and unpaid, all the taxes which were imposed on said premises for the years 1853 and 1854, and the estimated taxes for 1854, amounting to more than $125. The answer denies the forfeiture, (which is a conclusion .of law,) but does not deny that the taxes were inrposed and were due and unpaid; yet it alleges that no sufficient demand to pay the taxes had been made, on the defendant; and that after the levying of the taxes “the plaintiff, with full knowledge that all said taxes were due, payable and unpaid waived any supposed for
In erecting the buildings the defendant did no more than he had covenanted to do. There was no offer to prove that these improvements were made after a cause of forfeiture had occurred, and that the plaintiff saw them in progress. These two acts would be a waiver of the forfeiture. It was strenuously argued that no time was precisely fixed, in the lease, for the payment of taxes, while the time of'payment of rent was so fixed, and that in the city of New York there is no obligation to pay taxes, even for two years after they are imposed. The taxes, here, are confirmed in September for the current year, and interest is deducted to 1st December following, for all amounts paid before 1st of November of that year. On the 1st of December, one per cent is added to the tax ; on the 1st of January, two pér cent; and if the tax is not paid by the 15th of January, a warrant issues to the collector, to collect the same. When the lands are sold for non-payment of taxes, they may be redeemed at any time within two years. The answer admits that the taxes were due and unpaid, by not denying it, and by alleging a waiver after “the taxes were due, payable and unpaid.” A defendant admitting one fact in an answer, although he accompanies it with another allegation which favors himself, is bound by his admission, and obliged to prove his new allegation. But there can be no
The question then arises, did the acceptance of rent on the 1st of February, 1855, amount to a Waiver of forfeiture for non-payment of all taxes that should have been paid before that time.
The acceptance of rent is generally a waiver of a previous cause of forfeiture, if that cause were known to the landlord. But this rule does not apply to cases of “a continuing breach.” (Arch. Land. and Ten. pp. 98, 101.) So where there was a covenant that rooms’should not be used for certain purposes, and they were so Used, and afterwards the landlord accepted rent, and the tenant continued, after that, to Use them for the same forbidden purposes, ejectment could not be brought for the misuser prior to the payment of rent, but was sustained for the subsequent continuance of the same misuser. (Doe ex dem. Ambler v. Woodbridge, 9 Barn. & Cress. 376.) And where the lessee covenanted to insure, and keep insured, the buildings, and he neglected to insure and the landlord dis-trained for rent, and afterwards brought ejectment, it was held that he might recover; that the lease meant that the lessee should always keep the premises insured by some policy or another, and that it was broken if they were uninsured at anyone time; that “there was a continuing breach of the covenant for any portion of time that the buildings remained
Those cases may be said to decide only that there may be a forfeiture, notwithstanding the acceptance of rent, where a cause of forfeiture existed before the rent was paid, and the same cause was continued afterwards in such a manner that the continuance, of itself, made a new cause of action, to which alone the landlord need refer without proving the prior cause, and that here the landlord had but one cause—the non-payment of taxes which were due before the payment of the rent, and did not become due again. This may be so, but the acts of the parties operated to postpone this cause of action by their mutual consent. The plaintiff gave notice that he would eject unless the taxes should be paid; and then the defendant agreed that they should he paid by the 1st of January next. The forfeiture was not then enforced, but there was a further indulgence, not by agreement but by acquiescence. And, it may be inferred that both parties understood that this right should be suspended, not waived ; and if suspended, that it
There should be a new trial; costs to abide the event.
Mitchell, Gierke and Peabody, Justices.]