193 N.Y. 570 | NY | 1908
Lead Opinion
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I concur in the opinion of my brother VANN as to the last five counts in the complaint, but I think that the first five are also good. The question presented by the demurrer to these counts is whether a new lessee, whose lease begins at the termination of a prior lease, can, at his option, treat the prior lessee, in case he holds over, as his tenant under the terms of the original lease. That the landlord could do so, if he had not made the second lease, is unquestionable. (Schuyler v. Smith,
The orders of the Appellate Division and Special Term should be modified so as to overrule the demurrer to all the causes of action set forth in the complaint, with costs in all courts, and with usual leave to defendant to withdraw the demurrer and answer within twenty days on payment of such costs, and both questions certified should be answered in the affirmative.
Concurrence Opinion
In order to avoid confusion it will be convenient to consider each series of counts by itself, treating them as if there were two counts, one on either theory, and care should be taken to apply the language used in the discussion only to the facts alleged in the count to which it relates.
1. If the relation of landlord and tenant existed between the plaintiff and defendant under the lease which expired on the 1st of May, 1906, the former had the right to treat the latter as a tenant for another year upon the same terms, for the law implies an agreement to that effect under those circumstances. (Schuyler v. Smith,
Clearly the naked status of landlord cannot be assigned. It matters not that some rights may pass by the assignment of a lease with no term left, such as the right to recover unpaid rent, because, unless some part of the term passed, the defendant did not hold under the plaintiff but under the owner of the reversion on the first of May, when the term ended. While the plaintiff, under his lease from the owner the term of which commenced May 1st, 1906, had the right to possession after that date, no part of that term coincided with any part of the term of the defendant which ended on that day. No part of the estate held by the defendant under the first lease ever met any part of the estate of the plaintiff under either lease, for he took no estate under the former as it expired before the assignment to him took effect, and his estate under the latter did not begin until the other term had ended. The parties had successive but not concurrent estates. Neither held under the other, and both did not hold under the owner of the reversion at the same time, the one as tenant and the other as subtenant.
On the 1st of May, 1906, there was no privity of contract or estate between the plaintiff and defendant. While the former then became entitled to possession and the latter remained in possession without right, such possession according to the facts alleged in the first count, was that of a trespasser, not of a tenant of the plaintiff. The right to elect that a tenant holding over after the expiration of his term shall be liable for another year upon the terms of the lease, was not created by statute but existed at common law. The right on the one hand and the obligation on the other belonged only to those recognized by the common law as landlords and tenants. There must be a withholding of possession by a tenant from his landlord and the defendant was *579 not the tenant of the plaintiff when the question under discussion arose. While a lessee may become the landlord of his subtenant, it can only be when the lease of the former overlaps that of the latter. The owner of the reversion, whether it is a fee or a term, is the one to whom the law gives the right of election and the plaintiff was an owner in neither sense.
A tenant holding over from his landlord without leave is liable for rent at the election of the latter upon the theory of a renewal of the lease by implication. Owing to the previous relations between the parties the law implies a renewal of the obligations dependent on those relations, which measure every detail of the new contract. The amount of the rent reserved is thus ascertained. In the case before us the rent cannot be thus fixed, because neither party sustained any relation to the other with reference to the first lease because the plaintiff was not a party to it. Resort cannot be had to a lease between other parties for this purpose, as the law will not imply that because A agreed to pay B rent at a certain rate, he also agreed to pay C at the same rate when C sustained no relation to A while the lease was in force. To so hold would extend the rule with neither principle nor authority to support it.
Section
I think that each of counts one to five, inclusive, fails to state a cause of action.
2. In the second series of counts the pleader proceeds upon a different theory. He alleges that before the lease to the defendant expired and after the lease to the plaintiff had been given, the defendant requested the plaintiff to allow him to *580 continue to use and occupy the premises after his right had ended and that of the plaintiff had begun; that the plaintiff refused, but told him that if he should remain over his term the "plaintiff herein would elect to hold him as a tenant of said premises" for a year and "would consider, interpret and regard his remaining over * * * as a consent, agreement and contract * * * to occupy and lease said premises" for another year on the terms of the lease between himself and the owner of the reversion; that the defendant, knowing the terms of the plaintiff, remained over after the expiration of his lease and thereby agreed to take the premises upon those terms.
These facts constitute a cause of action, because the law implies from the fact of occupancy under the circumstances alleged that the defendant assented to the terms stated. This has been held in several cases which we regard as controlling in principle. (Despard v. Walbridge,
In the case last cited Judge RAPALLO said: "Although the resolution of the board of directors of the defendant, ratifying the purchase of the steamship by Mr. Webb on the terms and conditions set forth in the letter, may not have been communicated to the plaintiffs, yet, after the receipt of the letter by Mr. Webb the defendant took possession of the vessel without any dissent from the terms stated in the letter. This constituted an acceptance of and acquiescence in the terms expressed in the letter and the plaintiffs had the right to rely upon it as an assent to those terms." Retaining possession in this case had the same effect as taking possession in that, because each was an overt act which could not lawfully have been done unless it constituted an acceptance of the terms proposed. At least a jury might so find.
I think that each count in the second series sets forth a good cause of action; that the order appealed from should be affirmed; that the first question certified should be answered in the negative and the second in the affirmative. As both parties appeal costs should be allowed to neither.
HAIGHT, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur with CULLEN, Ch. J.; GRAY, J. concurs with VANN, J.
Ordered accordingly.