115 Misc. 320 | N.Y. App. Term. | 1921
Lead Opinion
I agree with Mr. Justice Mullan that under the authority of Livingston v. Robb, 61 Misc. Rep. 81, the counsel fee and other expenses incurred in procuring defendant’s removal are not proper elements of damage in an action for breach of the defendant’s covenant to surrender the demised premises at the expiration of defendant’s term but in my opinion the plaintiff is entitled to recover the value of the use and occupation of the premises.
The final order in the summary proceedings hitherto brought by the plaintiff constitutes an adjudication that as between this plaintiff and this defendant the plaintiff was entitled to the possession of the demised premises and even without such adjudication, it is well established “ that the tenant cannot be heard to say otherwise.” Eells v. Morse, supra. The plaintiff in this case having the right of possession as against the defendant holding over under his lease, must legally be entitled to recover for the use and occupation while he was kept out of such possession and since he was undoubtedly damaged in the amount of the rental which the second tenant was, under the terms of his lease, not required to pay to the plaintiff until possession of the premises was given to the second tenant, the plaintiff herein has the right to recover the amount of these damages against this defendant. Phelan v. Kennedy, supra.
On the other hand since the relation of landlord and tenant does not exist between the two tenants, it is evident that the second tenant cannot recover against the prior tenant for use and occupation and has not been damaged by the tenant’s failure to surrender possession of the premises without summary proceedings, for by the terms of his lease he specifically provided that rent under his lease “ shall not begin until possession of the space is given or available.”
The Court of Appeals in the case of Eells v. Morse, supra, has pointed out that its prior decision in the case of United Merchants Realty & Improvement Co. v. Roth, supra, is not in conflict with the rules of law which I have cited above and which, in my opinion,
"Judgment should, therefore, be reduced to the sum of fifty-six dollars and sixteen cents, with appropriate costs in the court below and as modified affirmed, without costs to either party.
Mullan, J., dissents.
Dissenting Opinion
(dissenting). The plaintiff, owner of a business building, leased a room in it to defendant, for a term expiring May 1, 1920. The defendant having failed "to vacate upon the expiration of that term, the plaintiff caused his removal by means of summary proceedings, and thereafter brought this action for damages for the wrongful withholding of possession, and has recovered a sum representing the value of the use of the premises during the over-stay twelve days — and the counsel fees and disbursements necessarily paid in and for the summary proceeding. I am of the opinion that the judgment cannot be sustained.
The counsel fees and other expenses incurred in procuring defendant’s removal are not proper ele
Prior to the expiration of defendant’s lease, the plaintiff had leased the room to Miller, the latter’s term to commence on May 1, 1920, when, as has been said, defendant’s term came to an end. Miller, after having been kept out of possession for the twelve-day period referred to, then entered. The learned trial justice correctly held that Miller would ordinarily have had the right to sue defendant for use and occupation for the twelve-day period, while plaintiff would ordinarily not have had that right (United Merchants’ Realty & Improvement Co. v. Roth, 193 N. Y. 570); but he was of the opinion that a certain provision in plaintiff’s lease to Miller took that right from Miller, and gave it to, or left it in, plaintiff. The provision reads: “If possession of the space covered by this lease cannot be given on or before the date of the commencement of the term, rent under this lease shall not begin until possession of the space is given or available, and such allowance of rent shall be received by the tenant in full settlement for any claims which the tenant might otherwise have by reason of said space not being ready on said date.” The lease was a formally prepared instrument, and in it the beginning of the term to Miller was very plainly fixed to occur on May 1, 1920. It seems to me to be very clear that it was the intention of plaintiff and Miller, in inserting the clause quoted, merely to release Miller from the obligation to pay rent for any period during which he might, for any reason, be unable to procure possession. The lease took effect on May 1, 1920, and from that moment Miller had all the rights of a lessee. The plaintiff was not required to put him in possession. United Merchants’ Case, supra. Miller did not wish to pay the rent for a period during which he might be kept out of possession, and the provision in
My brethren hold the view that section 2253 of the Code of Civil Procedure gives a right to the plaintiff to recover for the use of the twelve-day period despite the holding in the United Merchants’ case, I have never fully understood the reasoning of the majority in that case, but the holding itself seems to be clear enough, and most certainly allows the new tenant to sue the old tenant for rent. It is true that subsequently, in the Eels case, the Court of Appeals held that the new tenant was not such a landlord to the old tenant as was referred to in the summary proceeding statute. It may be difficult to reconcile the reasoning upon which the holdings in those two cases rest, but the actual holdings are plain and not in conflict. I think, therefore, that taking, as we must, the law as we find it, section 2253 of the Code of Civil Procedure should be read as meaning merely that a lessor who is entitled to rent from a dispossessed lessee is not barred from recovering it because the lessor caused the lessee's dispossession; and that it would not be read as giving to the lessor a right that the Court of Appeals said, in the United Merchants’ case, belonged exclusively to the new lessee.
I vote to reverse, and for a dismissal of the complaint upon the merits.
Judgment modified, and as so modified affirmed, without costs.
