38 Misc. 297 | N.Y. App. Term. | 1902
This is a summary proceeding brought by the landlord against the tenant to recover possession of certain demised premises for nonpayment of rent for the month of February, 1902.
The facts in this case were conceded upon the trial and are embodied in the opinion of the learned trial judge from which we quote as follows: “ It is conceded that the only lease existing between the parties hereto is that dated the 7th day of February, 1899, by which the landlord leased the entire liquor store and cellar and approaches thereto of the premises situated on the southeast corner of 129th street and Park avenue, in the city of New York, borough of Manhattan, for the term of four years, from the 1st day of March, 1899, at a rental of $780, payable in equal monthly installments of $65.00' on the first day of each month during the term, and that the tenant occupies said premises under said lease and none other, and that under and by virtue of
The learned justice then held that the payment of the January rent after knowledge of the eviction was a waiver of the tenant’s right to remain in the premises and arbitrarily refuse to- pay any rent; but that his right is only to set up any damages that he may have sustained by reason of the eviction complained of, and he therefore granted the final order appealed from. In this we think he erred. It seems to have been conceded by the parties that the facts stated as relative to the closing of the door of the demised premises constituted an actual eviction of a substantial portion of the same, which, if it ha'd been interposed at the proper time, would defeat any claim for rent. It will be observed
A judgment for damages for a nuisance or a trespass will not bar an action for the continuance of the injury, unless the act complained of is permanent in its nature, in which case pro1spective damages are recoverable and the first judgment will be a bar (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98) and the converse of that proposition is equally true.
The fundamental distinction between a 'constructive eviction and an actual eviction should be borne in mind. When the landlord suffers acts to be done which make it necessary for the tenant to remove, or does, or permits any intentional or injurious interference either by himself or those acting under his authority, which deprives the tenant of the means or the power of beneficial enjoyment of the demised premises or materially impair such enjoyment such acts are considered as tantamount to constructive eviction. Tallman v. Murphy, 120 N. Y. 345.
But in order to make a constructive eviction available as a defense there must be an abandonment of the premises. Boreel v. Lawton, 90 N. Y. 293; Thomson-Houston El. Co. v. Durant L. I. Co., 144 id. 44.
An actual eviction consists in the deprivation by the landlord of the tenant, from the whole or some portion of the demised premises, and where there has been an actual eviction from a part of the demised premises the tenant may retain possession of what he has, the entire rent being suspended until full possession has been restored. The act of the landlord in depriving
The cases are uniform in holding that, under such circumstances, the payment of rent is “ suspended until possession is restored.”
“ Where the lessor enters wrongfully into part of the demised premises, the tenant is discharged from the payment of the whole rent, till he be restored to the whole possession.” Lewis v. Payn, 4 Wend. 423-427.
“A wrongful eviction of the tenant by the landlord from a part of the demised premises suspends the rent until the possession is restored.” Christopher v. Austin, 11 N. Y. 216. See also Peck v. Hiler, 24 Barb. 178; Johnson v. Oppenheim, 12 Abb. Pr. (N. S.) 449, and Stern v. Brauer, 62 App. Div. 388.
The case of the Buffalo Stone & Cement Co. v. Radsky, 14 N. Y. St. Repr. 82, is analogous to the case at bar. In that case the defendant leased certain premises from the plaintiff for one year from April 1, 1896. After the expiration of the term the tenant held over with permission of the landlord. About June first in the second year the plaintiff entered a portion of the leased premises and erected a derrick, sheds, etc., occupying about one acre of the land. The rent was payable quarterly in advance and the defendant continued to occupy the remainder of the premises demised until the expiration of the year, and paid two quarters of the rent without objection, after the aforesaid occupation by the landlord. Wlien the action - was brought to recover the rent for the third quarter the tenant alleged an eviction. The jury found in favor of the defendant upon such issues. The court upon appeal held: “ The subsequent payment of two quarters’ rent does not have the effect of changing the rule; it did not change the obligations of the parties nor did it create new ones.
“ The dispossession continued, and (after citing eases in which the rule is laid down as before stated herein) the defendant could insist upon it at any time, when payment was attempted to be enforced.”
The point urged by 'the appellant herein that in consequence of the issuance of the warrant of dispossession in January, 1902,
Section 2253 of the Code of Civil Procedure provides in terms, that the issuing of a warrant for the removal of the tenant from the demised premises 'cancels the agreement and annuls the relations of landlord and tenant..
It was held, however, in Voorhies v. Cummings, 42 App. Div. 260, that where a marshal having a warrant for the removal of 'a tenant, issued in summary proceedings for the nonpayment of an installment of rent due under the lease, forbears to execute the warrant upon receiving the installment from the tenant, the acceptance by the landlord operates as a waiver by him of his right to consider the lease abrogated.
The final order must be reversed.
Gildersleeve and MacLean, JJ., concur.
Final order reversed, new trial ordered, with costs to appellant, to abide event.