120 N.Y.S. 993 | N.Y. App. Term. | 1910
The plaintiff herein leased to one Timothy D. Healey certain premises at a yearly rental of $7,000, together with such taxes and Croton water charges as might be imposed thereon during the year. Healey agreed to pay the rent and taxes monthly in advance. The defendant was surety for Healey under the lease. Healey subsequently assigned the lease to the Harvard Automobile and Garage Company, but it does not appear that the plaintiff ever released Healey from any obligations under the lease. The plaintiff’s interest in the premises leased by it was through a lease to itself from Lewis M. Borden and Joseph F. Taylor, as landlords. On Uovember twenty-seventh a petition in summary proceedings to dispossess, entitled “ Lewis M. Borden and Joseph F. Taylor, landlords, against The Rainier Company, tenant, and Harvard Automobile Company, undertenant,” was filed in the Municipal Court on account of the failure of this plaintiff to pay rent to its landlords. On December second a final order was entered, according the possession of the premises to the landlords; and on December ninth a warrant was issued, and the Harvard Automobile Company vacated the premises on December tenth. Thereafter the plaintiff brought this action for the instalment of rent and taxes due Hovember first; for the instalment of rent and taxes due December first, and for the Croton water charges due December first. The facts recited above were not disputed, and the trial justice directed a verdict in favor of the plaintiff for the full amount.
While the plaintiff has not itself paid any rent to the landlords for either JSTovember or December, and this neglect has resulted in a breach of its covenant of quiet enjoyment to its tenant, nevertheless, I think the direction of a verdict upon the first cause of action for rent and taxes due on Hovember first was correct. This rent was due in advance, and the plaintiff was not required to allege or prove that it had complied with the terms of the lease. The rent had accrued on that date, and a subsequent breach by the plaintiff of a covenant of the lease could not deprive it of its rights. Hurliman v. Seckendorf, 9 Misc. Rep. 264; 10 id. 549. . Even a subsequent wrongful eviction on its part would be
It seems to me, however, that the learned trial justice should have dismissed the second and third causes of action for rent, taxes and water charges accruing on December first. The trial justice apparently relied upon dicta that are to be found in several cases, that “ It is well settled that under this statute (Code, § 2253) the issuance of a warrant of dispossess terminates the lease and relieves the tenant from further liability except for such rent as shall have accrued prior to the issuance of the warrant.” Slater v. Bonfiglio, 56 Misc. Rep. 385 (City Court.) See also Adler v. Kramer, 39 id. 642, 644. The law, as laid down in the case of Michaels v. Fishel, 51 App. Div. 274; affd., 169 N. Y. 381, is that, “ although the issuing of the warrant for the removal of a tenant cancels the lease, still the landlord is not precluded thereby from holding the tenant for rent to the time the warrant was issued.”
In spite of these cases I think that the law is well settled that section 2253 means exactly what it says: The lease is cancelled by the issuing of the warrant for all purposes except that it does not prevent the landlord from recovering “ any sum of money, which was, at the time luhen the precept was issued, payable by the terms of the agreement, as rent for the premises; or the reasonable value of the use and occupation thereof, to the time when the warrant was issued, for any period of time with respect to which the agreement does not make any special provision for the payment of rent.”
In the case of Riglander v. Nile Tobacco Works, 21 Misc. Rep. 339, the landlord sought to obtain payment of an instalment of rent falling due on March first before the issuing of the precept and also rent claimed to have become due on April first while the summary proceedings were pending. This court, in a learned opinion written by Mr.
In the case of Boehm v. Rich, 13 Daly, 62, the court held that, where rent was due on June second, proceedings were begun on that date, and the tenant removed on June third, he was not obliged to pay the rent due on June second, because no default in the payment of rent took place until midnight of that date.
I do not think that the subsequent case of Adler v. Kramer, supra, or Slater v. Bonfiglio, supra, is authority for any other rule. The statements of the law above cited were merely dicta. In the case of Slater v. Bonfiglio, the only question before the court was whether, after the landlord had obtained the premises by summary proceedings, he could hold the tenant for a deficiency in rent when he leased the premises to another party. It was immaterial, in this case, whether the tenant was bound to pay rent till the precept was issued or till the warrant was issued; and at one place the court says that the landlord could recover rent till the first event, and at another place till the second event. Moreover, as authority for the dictum quoted above, that the landlord could recover accrued rent till the issuance of the warrant, it cites various cases which are authority only for the proposition that the summary proceedings destroy all obligations created by the lease “ excepting such as had accrued at the time of the dispossession,” whether such rights he for the payment of the rent under the lease or for use and occupation. In the case of Adler v. Kramer, supra, the same statement of the law is based upon the same authority; and the distinction between the right to the rent reserved and the right to the value of the use and occupa
The judgment should, therefore, be modified by providing for the dismissal of the second and third causes of action and, as modified, affirmed, without costs on this appeal.
Giegerich and Dayton, J.J., concur.
Judgment modified, and, as modified, affirmed, without costs.