| NY | Dec 5, 1852
The original lease between Mrs. Dunscombe and the plaintiffs contained a covenant of reentry on the nonpayment of rent by the lessees for ten days after it fell due. The jury have found that the ground rent due to Mrs. Dunscombe by the defendants, the lessees' tenants; and the only question of any importance, is whether they were justified in making such payment and entitled to have the amount applied in discharge of their rent due the plaintiffs.
It has been frequently decided upon the most obvious principles of justice that if an undertenant is compelled to pay rent to the head landlord he may deduct it from the rent due to his immediate lessor; or if the sum paid exceeds that due the lessee the tenant may in an action of assumpsit for money paid to the use of the lessor, recover the excess (1 Smith's Leading Cases, 4 Am. ed. 202, 3 and 4, marg. pages 73, 4, 5, and cases there cited; 4Term, 511). This privilege upon the part of the undertenant exists, if there be in the head landlord a legal right by the exercise of which the person who pays may be damnified unless he satisfies it (1 Leading Cases, 203). It is not necessary that the head landlord should distrain or even demand the money or commence or threaten a suit. The right to enforce *530 his claim in this way will make the payment by the undertenant compulsory within the principle of the decisions.
In this case the original lessor had, as we have seen, the right of reentry. The undertenant was authorized to protect his possession against the exercise of this right by paying the rent to the head landlord. Such a payment is not voluntary, and there is no question but that it was made by the defendants in good faith with an honest purpose to shield themselves from damage. I think the judgment of the common pleas should be affirmed.
Judgment affirmed