2 Hilt. 217 | New York Court of Common Pleas | 1858
The evidence offered by the defendant to show the damages he has sustained by the closing of the Academy, was intended to prove that during the. performance previous thereto, Mario, one of the performers, was taken with a cold and hoarseness, which prevented him from performing, which resulted from the neglect of the plaintiffs to make the necessary provision for warming the building; that his sickness continued for four weeks, and in consequence thereof the defendant sustained loss of gains and profits he expected.
This evidence was excluded on the ground of its uncertainty and remoteness. I see no reason to change the opinion expressed at the trial. The damage supposed to arise from such a case is altogether too remote and uncertain, both as to the cause, the na
I. In order to produce an eviction, it is not necessary there should be an actual physical expulsion. Pendleton v. Dyott, 8 Cow.
The rule is the same whether the damage is produced by water on goods or by exposure to cold, either in property or person. If the building is unfit for the purpose contemplated, then the tenant should not use it, and should seek redress in another form.
The mere notice to the tenant was not an eviction, and the evidence does not show any actual eviction prior to the time when by the contract the lease was to terminate.
The matters offered by the defendant, and which were excluded, relating to the supposed damages sustained by him, were not, in my judgment, admissible for that purpose, and the rulings in renard to them were not erroneous.
Motion for new trial refused.
From the order entered pursuant to this opinion, the defendant appealed.
III. The covenant of the plaintiffs is to use all diligence in finishing the house; and this, in connection with the limited term for which the defendant hired it, rendered it incumbent on the plaintiffs to use more than ordinary exertions to fulfill their' covenant. Chitty on Contracts, 735, 736 ; Crocker v. Franklin H. & F. Manufg. Co., 3 Sumn. 530; Kerby v. Harrison, 2 Ohio (N. S.) 396. 1. The defendant offered to prove that, by reason of the plaintiffs violating their covenant to finish the building, he was unable to proceed with the business for which the building was expressly leased to him, and had sustained great loss,
I. The justice who tried the cause did right in excluding any testimony in regard to the illness of Mario, a. Every set-off must arise upon contract, or be connected with the subject matter of the transaction. The illness of Mario was neither of these. ■Code, § 150; Cram v. Dresser, 2 Sand, Sup. Ct. Rep. 120. b. Such
II. The fact that the Academy of Music was too cold for operatic performances, or even was entirely unfitted for such performances, would in itself have given no right of set-off or recoupement to the defendant, a. The house was to be accepted in the condition in which it was. 5. Even where a building is let for a special purpose, and its use or occupation for any other is prohibited, there is no implied contract or warranty on the part of the landlord that the building shall be, or continue, fit for the purpose for which it is demised. Hoiuard v. Doolittle, 3 Duer, 464, and cases there cited, c. Nor, if the building ceases to be habitable, or is wholly destroyed, is the tenant discharged from the payment of the whole or any part of the rent. He can only be so by express agreement. Hoiuard v. Doolittle,. cited above.
III. The justice did right in refusing to charge that ther.e was eviction on the 4th of November, 1854. a. To constitute an, eviction, there must be some deliberate interference on the part of the landlord with the possession, depriving the tenant of the beneficial enjoyment of the demised premises. Words or directions to employees amount to nothing. The act- must be done. Ogilvie v. Hull, 5 Hill, 52; Bennett v. Bittle, 4 Rawle, 343. 5. The evidence shows that the person who-, had charge of the building during the whole time defendant occupied,, did not close the building until after the defendant had left the building for the night, c. The evidence shows no interference with the defendant’s possession until Sunday morning, November 5th, 1854, and nothing then amounting to an eviction.
IY. The rent, for which action is brought, had accrued previous to any eviction, and therefore such eviction (if there was any) cannot be set up as an extinguishment, a. The landlord,
Y. The justice did right in excluding all testimony in reference to the opera “ Semiramide,” and all matters connected therewith, and also all testimony as to damages by reason of the non-performance, a. Any damages which might have arisen thereunder are too remote and contingent to be made the subject of set-off. Trull v. Granger, 4 Selden, 115. b. The measure of damages is the difference between the rent reserved and the value of the premises for the term, and this measure is the same whether the action be on contract or in tort. Hull v. Granger, cited above; Kelly v. The Dutch Church of Schenectady, 2 Hill, 105; Kinney v. Watts, 14 Wend. 38; Moat v. Johnson, 1 Hill, 99.
YI. The directors used all reasonable diligence in finishing, and this was all they were required tó do.
The testimony does not show that any demand for the rent was made. It is alleged in the complaint that the rent which accrued on the 21st and 28th days of October, and the 4th of November, 1854, as it became due, was duly demanded, but it is admitted in the reply that $26 should be deducted from the rent claimed in the complaint. It does not appear at what time of the days, on which the rent fell due, it was demanded; but it appears that on the 4th of November, 1854, and at about 6 P. M. of that day, Mr. Paine, who was acting on behalf of the directors of the Academy of Music, directed Mr. Tunison to close the building, and not to permit any person to enter it without an order from Mr. Phalen, the president of the Academy, or himself. And it further appears that Mr. Tuni
The allegation in the complaint of the demand does not show a compliance with the law, because it appears that the precise sum due was not demanded. The defendant, under the agreement, was entitled to a credit of $26, as admitted by the reply. But, even if the demand was in all respects complete, the plaintiffs had no right to possession until midnight of the 4th of November. The defendant had the whole day in which to pay the rent, and, until the day expired, could not be disturbed. Duppa v. Mayo, 1 Saunders, 287; Kidwelly v. Brand, Cro. Eliz. 73; Co. Lit. 201, b., 202, a.; Wood and Chevers' case, 7 Term Rep. 117; Sweet v. Harding, 4 Washt. (19 Vert.) 587.
Taking possession of the premises was a deliberate interference with the defendant’s possession, by which he was deprived of the premises. The eviction was complete, (Burns v. Phelps, 1 Starkie, 94; Luckey v. Frantzkee, 1 E. D. Smith, 47; Ogilvie v. Hull, 5 Hill R. 52; Pendleton v. Dyott, 8 Cow. 727; Lloyd v. Tompkins, 1 T. R. 671; Cohen v. Dupont, 1 Sand. S. C. R. 260; Jackson v. Eddy, 2 Miss. 209; Peck v. Hiler, 14 Howard’s Pr. R. 155), athough such eviction did not discharge the rent which
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averment in the complaint, that the rent falling due on the 21st and 28th of Oct, and 4th of November was, as it became due, duly demanded, was put in issue by the general traverse at the close of the answer. If the plaintiffs, therefore, meant to justify their taking possession of the opera house on the 4th of November upon the ground that they had the right to re-enter for condition broken, it was necessary for them to show that they had made a demand of the rent in the manner required by law, to operate as a forfeiture of the lease, and give the right to re-enter.
Forfeitures of this description are not favored, and to work a forfeiture for the non-payment of rent, the common law requires a previous demand of the rent due, with circumstances of great joarticularity. The demand must be made upon the demised premises upon the very day when the rent becomes due, before sunset, and the exact sum must be demanded, not a penny more or less;—(cases collected in Archbold’s Landlord and Tenant, p. 161, and in Comyn on Landlord and Tenant, 827);—and even where demand is made, the tenant has until midnight to pay it. “ The rent is not due,” says Chief Justice Hale, (Duppa v. Mayo, 1 Saund. R. 287,) “ until the last minute of the natural day and the lessor cannot put his right to re-enter in force until the day has expired. Maundes’ case, 7 Coke, 28 b.; Burrough v. Taylor, Cro. Eliz. 462; 1 Wms. Saund. 287 b.
The only evidence, in this case, of a demand was a notice from the secretary of the plaintiffs to the defendant, bearing date the 4th of November, 1854, announcing that “ the unexpired term of your lease of the New York Academy of Music building is forfeited by the non-payment of rent due this day, and that the building is closed,” which was written by the secretary to be served on the defendant on the 4th of November. There was nothing to show that a demand of rent was ever made before the 4th of November. If made on that day for the exact amount
It was a part of the written agreement, or lease, that the plaintiffs were to use all diligence in finishing the house. This was an express agreement on their part, and if there was a breach of it, the defendant was entitled to recoup or counter claim his damages arising from the breach, against the plaintiffs’ claim for the two weeks’ rent. His offer, however, to show that Mario took cold from the coldness and dampness of the house while he was en
I think otherwise, however, in respect to the offer to show, that when the plaintiffs took possession of the opera house on Saturday the 4th of November, that the defendant had announced a representation of the opera of “ Semiramide ” for the Monday evening following, and had incurred great expense in bills and advertisements when he was deprived of the house by the act of the plaintiffs. This was an item of damage that could be easily ascertained; and I do not see upon what principle this evidence could be excluded. There was sufficient evidence in the case to warrant the jury iu finding that there was a breach of the agreement to use all diligence in finishing the house, and the expense and loss the defendant had been put to, by bills and advertisements, he was entitled to prove, and have deducted
The damages claimed as arising from the illness and inability of Mario to perform were, I think, too remote, and evidence in respect to them was properly excluded. Griffin v. Colver, 16 N. Y. R. 489. Besides, it is a general rule that a tenant occupying premises cannot, in an action for rent, be permitted to claim that they were unfit for habitation, or for the purposes intended by him at the time of hiring, in abatement or extinguishment of the demand for rent. Edgerton v. Page, 1 Hilton R. 320; Moffat v. Smith, 4 Com. 126; Cleves v. Willoughby, 7 Hill, 90; Westlake v. Degraw, 25 Wend. 669; Mumford v. Brown, 6 Cow. 475.
It is admitted by the pleadings that the rent, as it became dué, was duly demanded. The action is brought and the recovery is had for rent due, and duly demanded and unpaid. Conceding, then, that the rent due November 4th was not actually due on the afternoon on that day when the, defendant was deprived of the possession by the plaintiffs, there still remains the forfeiture arising from the non-payment, and due demand of the rent falling due October 21 and 28, as admitted by the pleadings-, which no subsequent acts of the plaintiffs waived; and as the peaceable eviction of the defendant subsequent to this forfeiture was not wrongful, his claim for damages arising out of what took place on November 4th was therefore properly excluded.
Indeed, it would seem that the verdict of the jury was based upon the assumption that the lease had terminated and become forfeited by non-payment of rent on October 21st, as their verdict is only for the amount owing for the two weeks’ rent, after de
I think the order appealed from should be affirmed.
Order appealed from reversed, and new trial granted.