6 N.Y.S. 413 | N.Y. Sup. Ct. | 1889
In 1884 the plaintiff, Mrs. Margaret A. Oliver, occupied the house Ho. 675 Fifth avenue in the city of Hew York, and rented rooms and took boarders there. On the 29th day of September in that year she entered into an agreement with Miss Harriet Gross, in writing and under seal, whereby she let unlo the said Harriet Gross “all those two certain rooms situated in the third story of house Ho. 675 on Fifth avenue in the city of Hew York, being the front and rear rooms on said floor, * * * for the term of eight and one-half months from the 1st day of October next, A. D. 1885, at the rate of twenty-seven hundred and twenty-five dollars, to be paid in weekly portions of seventy-five dollars each, beginning on the said 1st day of October, 1885.” By the same instrument, Miss Gross, for herself, her heirs, executors, and administrators, covenanted and promised to pay the rent, and not at any time during said term to let or demise the premises or rooms to any person or persons whatever, without the consent of Mrs. Oliver, and further agreed at the expiration of said term to yield up and surrender the possession of said premises. The agreement also contained the following provision: “And it is further agreed by and between the parties hereto, and the said Margaret A. Oliver doth covenant and promise, that for and in consideration of the said
I think the contract between the plaintiff and the defendant’s testatrix was a lease, which made Miss Gross a tenant of the demised premises, and that her estate became liable for the rent as long as the term lasted. The form of the contract is that of a lease, and cannot properly be characterized, as was the paroi contract in White v. Maynard, 111 Mass. 250, as “an ordinary agreement for board and lodging in the plaintiff’s boarding-house, by which the plaintiff, as keeper of the boarding-house, retained the legal custody and care •of the whole house, and every room therein.” This agreement would be extraordinary indeed, in form, if intended as the common and usual contract for board and lodging. It gave Miss Gross different rights from those belonging to the ordinary boarder and lodger. It entitled her to exclusive possession of the premises as against Mrs. Oliver, and would have justified her in the use of force to exclude Mrs. Oliver or any one else whom she might choose to •deem an intruder. In other words, Mrs. Oliver, by this instrument, divested herself of the legal custody and control of the rooms, and vested such legal custody and control in Miss Gross. The eases upon which the defendant bases his argument that the contract in question here is merely an agreement for
The case last cited also bears on the second question presented by this appeal, which is whether the defendant was entitled to offset against the plaintiff’s claim the amount which the plaintiff saved by reason of not having to board the lessee during the whole term of the lease. On this branch of the case the plaintiff insists that the contract entitles her to recover the whole amount specified therein, less what she has already received, inasmuch as she was at all times prepared and willing to furnish board to two persons up to the end of the term. But the persons thus to be boarded were particularly designated in the agreement, and Harriet Gross, one of them, was expressly named therein. It could not have been within the contemplation of the parties that the undertaking to furnish board would become applicable to some other person in the event of her death. In the case of Shallies v. Wilcox, supra, the plaintiff leased certain premises to the defendant at a yearly rent of $300, and further agreed, in consideration of the covenants and agreements contained in the lease, to board the defendant at his house. After a while he refused to allow the defendant to board there, and in an action on the lease for the stipulated rent it was held that the defendant had a right of recoupment and counter-claim to the extent of the value of his board from the time the plaintiff refused to board him. “ When the lessor elected not to board the defendant longer, for whatever cause,” said the court, “he released in legal effect a right to recover the full consideration for the occupancy of the store, called ‘ rent,’ to the extent of the value of the defendant’s board.” It was also said in that case that the sum of $500, stipulated to be paid for rent, was in part payment for the defendant’s board, and that he was as much entitled to his board as he was to occupy the demised premises. So here it is equally true that Miss Gross was as much entitled to her board as to occupy the rooms which had been leased to her. The plaintiff did not refuse, like the lessor in the ease cited, to furnish the board, but the performance of this part of the contract became impossible by reason of the lessee’s death. As the agreement was to board Miss Gross personally, I think her death operated
As to the amount of interest which the plaintiff was entitled to recover, I am unable to see why she should not have been allowed interest upon each weekly payment from the time it became due. If the contract had been carried out according to its terms the plaintiff would have received $75 every week, and from the time she received that amount would have enjoyed its use. This use, which the defendant has retained to himself, was worth the legal rate of interest, and it is no hardship to the defendant, and simply justice to the plaintiff, to compel its payment. The exceptions of the defendant should be overruled, and the exceptions of the plaintiff should be sustained, and a new trial granted, with costs to the plaintiff to abide the event. All concur.