*1 v. Levi. Statement of case. travels rail-car, coach or or con-
steam, any public and does the hazard of such take, take, veyance, expects him accidents as occur to without want of care or may any of liable the carrier. carrier diligence part elements, for an the action of injury passenger could have science, no care or skill or where foresight, guarded it. the accident which occasioned against Term the General nonsuit properly granted, and must reversed. error, costs, Order the General Term reversed, judg- of with costs. dissent- ordered, ment the nonsuit 0., ing.
In the matter of Charles G. application tenant, landlord, Appellant. Respondent, v. Emanuel Levi, at the end provision, terminate the lease A in a lease the lessor notice, sixty days previous in case he should sell any year, by giving rebuild,” and the term hut not a desire thereafter, sixty days expires by of a sale force part of act on the the lessor. further days elapse, sixty this is such after the If tenant retains provi- within holding over case pro- summary Statutes, give the Revised will sions for his removal. ceedings vendee, legal upon delivery sale, conditioned A passed terminate the actually does not having titlе not tenant, proceedings had in the so that cannot he landlord relation original lessor. name decided, 6, 1871.) January 13; respondent, for (Argued Term the Appeal an order the General from certiorari, Buffalo, affirming, upon Court of of Erie had before tenant, County Judge removal of county. instituted landlord against
This proceeding Erie to recover the county, the county before tenant, judge Y. Hand —Yol. [May,'
Statement of case. of certain demised situate in the possession premises, city under the Buffalo, the Revised case provisions Statutes, of a tenant over after the of his term. holding expiration
The affidavit of the landlord, which the summons set forth the issued, on thirtieth of that, 1862, April, Miller leased to Levi known as number 184 Main premises street, Buffalo, for the term of four on years, the beginning first 1862, on the first day May, ending day May, at the rent of 1866, $775, “with the reserved yearly privilege to terminate the lease at the end of any year by giving sixty in case he should sell or days desire previous rebuild.”
That he sold the & Black premises Alexander, January That the 15, 1864. twelfth of 1864, February, gave notice to Levi that he had sold the and should ter- minate the lease the first day 1864, May, pursuant the so reserved in the lease. right
That Levi held over continued in the of the possession without his permission. This affidavit was made and 2, presented 1864, which the issued summons directed to county Levi, judge the facts Levi stated, forthwith to remove reciting requiring or show cause him before on the same premises, day at o’clock m.
The summons was served and Levi aрpeared objected which was overruled. county judge, He then filed his affidavit of wherein he admitted traverse, that he inwas of the but denied that possession premises, had Miller sold he held over after averred, them, of his and that was entitled to the denied made he also He no jurisdiction. denial of the terms of his as stated the affidavit tenancy, the landlord. and a trial issues was summoned of the
Thereupon jury had who, before alle- them, hearing proofs found verdict the landlord was gations pаrties, entitled to the possession y. Gray, issued warrant for county judge which was executed. duly certiorari, out a writ of
Levi then sued pro- Buffalo. to the Court of were removed ceedings returned The evidence county among judge, to sell the cоntains premises by things, agreement 5, to Black & dated Alexander, 1864, January demand and to the same on sum $20,000, convey 1864, & 1st Alexander, of Black as soon after the of May, *3 a and shall obtain execute can they mortgage thereafter, that in amount three years pay the interest thereon bond semi-annually, pay and on the with the taxes assessments together property.
It the return that a from Miller deed, also from appears & executed, to Black Alexander of the duly wife 13, 1864, 15, 1864, dated January acknowledged April & that Black 'Alexander deсlined delivered, but ready in to execute the until bond they put mortgage possession.
The at General Term affirmed the Court proceed- to the Court of tenant ings, thereupon appealed Appeals. Matteson,
Houghton appellant.
A. P. Laning, respondent. One terms of the under
Gray, C. lease, Levi reserved to Miller to sell the entered, right and to limit Levi’s term therein to the expi- 'demised premises, sale. The sale and after notice of the ration of sixty days were thus made lease, specified was limited to the term lapse which Levi’s taken sale and notice. The issue days sixty the affidavit of contained in Levi was upon allegation that he had sold the his landlord, jury demised him, this issue county judge thereupon found against [May, v. Levi. per Court, Oom. held lease had terminated that, the condition which the hy bеen found him, having against entitled to it accord- him, warrant to issued dispossess In this and hence the no error was committed, judg- ingly. ment from should be affirmed. appealed We are not at into
Hunt, C. inquire ques liberty tion evidence of evidence. plaintiff gave weight defend-., & to Alexander Black. The sale of the premises show that the sale was matters, ant various tending proved that the rid device to sham, lease, plain existing get rent. The considered the tiff receive higher jury might and found favor of the there was evidence, theory fact, sale. If the General Term had reversed this finding the case would have been to our consideration on open ) 40 N. Y., (Freeman Ogden, point. 105. Where the General con Term, instance, present as to the cаuse, facts, cur with the court the deter trying mination is conclusive we are to the facts as us; accept *4 there found. (Id.) is that the relation
There no foundation objection and tenant did not That relation was of landlord exist. the the in of established parties agreement remained the owner the of plaintiff writing. had made contract of sale with Alexander &
Although had not been consummated the Black, the sale delivery the sale was conditioned Indeed, the deed. delivery upon refused to the deed and the vendees accept of the until their possession execute mortgage, intimate that, to them. Some of the cases delivered sale, this relation exists between the ten the occurrence and that under this act ant purchaser, them, however, instituted the latter. Hone be hy may name not he taken intimate that proceeding he still title. lessor, (Gard retaining legal original v. 3 Birdsall 330; Wend., 17 Ketteltas, Hill, Phillips, ner v. 464.) 493 v. made before the is insisted objection justice, that had no now, justice jurisdiction pro This was based this argument
ceeding. special can resorted to term be where the proceeding of time,” lessee has which it was said wa.s by lapse expired the fact in the instance. The present proceeding one, the facts undoubtedly special necessary give juris If the affidavit. assume must diction appear justice he has it will be vacated. not, when judgment 1 Seld., 383; Beach, v. Nixon v. (Benjamin Benjamin, imp’d, of a Thus the breach lessee geld., 35.) be used for deemed will not purpose permit thаt, in case such the lease hazardous, use, extra shall at the and that he lessor, cease and determine option immediate under the recover statute possession thereupon, may, an will not such the term as expiration question, v. Nixon, Seld., (Beach authorize 'the present proceeding. cut tim the breach of no wood or agreement So 35.) tim and not off wood or ber, except fencing, carry such an term will not create ber, does considering. under the statute we аre authorize summary proceeding Wend., In these kley Schoonmaker, 226.) (Oa class of cases retains where party large possession remedies must be to, the common law resorted without night, redress. to obtain cases in this limits defines the preсise The statute S., 28, taken. sub. Where R. (2 513, 1.)
proceeding may § lessee at shall hold over will, (tenant etc.) such person the demised expi continue *5 of the landlord.” permission ration of after default is over there such payment 2. Where holding are not other cases made. The and demand rent here arises under as the be mentioned, question necessary I have of which language. subdivision, given the first and Oakley Nixon to, of Beach v. referred In the cases formed conditions broken the covenants Schoonmaker, broken, If limitations. conditional but were not lease, [May, take lessor breach might thereupon advantage declare the lease at an end. The did not, however, breach terminate the lease. There no limi- was, therefore, ipsofacto tation of the lease necessarily breach dependent upon the condition. The distinction is thus taken pointedly in the first of those J., cases The provision Johnson, lease creates condition not conditional limita- merely lessor, tion. The breach, is not to be in upon immediately of his former at his estate, but, and the rela- option, hiring and tenant are tion landlord cease, are, course, until he shall continue otherwise elect.” This distinction estates deed is thus illustra granted by ted Crabb on Eeal 2135, 2136; Law Li Property, §§ 524: When an is brary, estate so limited the words of its creation that it cannot endure for any time than until longer which the estate is to this contingency happens upon fail, denominated as when land is to a limitation, man granted so as he Dale, so as he long parson continues long unmarried, or the like. In such case the estate determines as as the soon he is, when ceasesto be contingency happens, On Dale, marries. parson other hand, where estate is condition in expressly deed, to be granted * * void £40 or that payment grantor, York, etc., law it to endure grantor goes permits beyond the time of the unless the contingency happening, grantor take the breаch of condition advantage by making entry, etc.” “In Mary case, lord Coke if Partington’s my says, there be words of condition annexed to the it estate, a condition; cannot be construed to be but this has been denied there no law, being authority pоsition;’ strict words condition be if on used, breach though condition estate be limited over to third and does person not revert to the if an estate be limi immediately grantor, ted to within two B, years intermarry failure C, then to D and his heirs, this the law construes to be for if condition; A or his could avoid the estate representatives *6 Bradley Wheeler. Statement case. D’s remainder defeated their so
by by entry, might estate of when it is enter; but neglecting enter and that of 0 commences, B determines, or claim.” act, lands without any entry immediately, Stearns Wend., 358; Bennett v. also, Robinson, (See, 16 Maine, Godfrey, 160.) sale and notice thereof to
Immediately upon with- latter, the limitation attached to estate of tenant, on the Miller. There then arose out further act part limitation of his the 1st of term, to its wit, The act in the lease itself, wit, contemplated, following. sale with created the Mo further was expiration. thing In the case of or in that of timber, necessary. using cutting extra-hazardous the act, purposе, although building An breach of did not terminate the estate. entry, or its was also were cases of equivalent, necessary. They conditions while’the case before us is that of a condi- merely, ” tional term of the lease therefore, limitation. must, ” bе taken to have on the 1st of 1864. expired May, authorized statute, judgment must be affirmed.
All concur.
Order with costs. affirmed, Bradley George Sutherland, Daniel G. A. Respond Ingersoll, v. Bethuel Wheeler and Horace ents, C. Appellants. property, law, personal when сommon a mere contract for the sale of At title, vendor, transfers the nothing remains to be done delivery. payment or consideration, all simple computation gross amount of A to ascertain the ascertained, not such comрutation being already of that elements prevent passing. title thing remaining to be done as will place, specified merely goods to a Contract to move
Where vendors purchaser charge thereof done, assumes the moment this is is satisfied. portion, of frauds takes the statute actual