10 Daly 286 | New York Court of Common Pleas | 1881
Raether was the tenant of Ryder, the owner of the land. He sub-let a portion of the premises to one Kohlhepp, who assigned his sub-lease to the plaintiffs. There is a conflict in the testimony as to whether Raether consented to the assignment by Kohlhepp to the plaintiffs, but the justice found, and I think correctly, that he did consent in the course of a day or two after the plaintiffs had entered into possession of the premises which they acquired by the assignment made to them by Kohlhepp; Raether went to his landlord, Ryder, surrendered his lease to him, and Ryder, accepting the surrender, made a lease to Pratt & Herrick of the premises which Raether surrendered. Pratt & Herrick came to the plaintiffs, and told them that they could not remain unless they paid them thirty-five dollars per month instead of twenty-five, which was the rent mentioned in the sub-lease from Raether to Kohlhepp. The plaintiffs said that they were not prepared to do that, but that, in order to keep possession, they would pay the extra ten dollars until they ascertained what their rights were. The plaintiffs paid Pratt & Herrick, who assumed to be their landlords, rent at the rate of thirty-five dollars per month, for several months, and they then brought this action against Raether for “ a breach of the contract of letting,” as their oral complaint describes their cause of action. The justice found in favor of the plaintiffs, and awarded them $120 damages, intending, I suppose, to give them the sum which they will in the course of a year pay to Pratt & Herrick in excess of the rent which the sub-lease, assigned to them, obliged them to pay.
. Exactly what the pleader meant by calling his supposed claim against Raether “ a breach of the contract of letting,” I am unable to conjecture. Was it that he supposed that there was a breach of the covenant for quiet enjoyment 1 Possibly. But, when was it held that a landlord—and such was Raether’s position—broke the covenant for quiet enjoyment when he sold
It is somewhat singular that until within the past few years there were no authorities on this question to be found in the books. When Taylor published the third edition of his work on Landlord and Tenant, the text of section III. read, “ It is said that the interest of an under-lessee cannot be defeated by the mesne lessee surrendering his estate in the premises to his lessor." For this he refers to no authority. Since the date of that edition, the decisions have been numerous on the point, and among them are the following cases: Eten v. Luyster (60 N. Y. 252); Allen v. Brown (5 Lans. 280); Mellor v. Watkins (L. R. 9 Q. B. 400); and Great Western R. R. Co. v. Smith (L. R. 2 Ch. D. 235).
By way of compensation to the plaintiff, I call the attention of his counsel to some authorities which may mitigate the regret that he may feel at the reversal of this judgment; the authorities are Smith’s Landlord and Tenant, citing Shepherd’s
The judgment must be reversed.
J. F. Daly, J., concurred.
Judgment reversed, with costs.