| NY | May 3, 1904
Lead Opinion
The action was brought to recover a quarter's rent of certain premises in the city of New York owned by the plaintiff and the defendant Healey, as tenants in common, the plaintiff owning three-quarters and the defendant Healey one-quarter. In May, 1891, the plaintiff and Healey by a written lease demised the premises to a firm composed of said Healey and the defendant Zabriskie for the term of one year at the annual rent of $8,500, payable quarterly, with the privilege to the defendants of continuing the lease for two years more upon giving notice in writing to the owners on or before February 1st, 1892. Notice to renew was not *393 given. The relations between the plaintiff and Healey were unfriendly. On April 29th, 1892, Healey Company wrote two letters, one to the plaintiff and one to the defendant Healey, informing each that as indicated by their failure to exercise the option reserved in the lease they did not intend to renew it. They further stated that understanding the premises had not been rented for the coming year they would be pleased to occupy the same for a few weeks from the first of May, paying a pro rata rent for such use and occupation. On the following day the plaintiff replied in writing: "You have been already informed that I would renew the lease of the factory for one year at the same rent as in the present lease, but would not let it for a shorter period. As your letter only repeats your request for a few weeks occupancy from May first, my answer repeats my refusal to grant it. Yours truly, Henry C. Valentine." The defendant Healey replied to the letter of Healey Company as follows: "You are at liberty to continue to occupy the premises at a pro rata rent for the period of such occupancy. This privilege is accorded you only with the understanding and agreement that such occupancy is to be terminated on a week's notice from either party, in order that we may take advantage of any opportunity that may offer to rent the premises for the entire year. Very truly, Warren M. Healey." Other correspondence was had between the parties, the details of which are not necessary to the disposition of this case. The defendants continued to occupy the premises for some weeks after the expiration of the lease, and then removed from the premises. The learned judge at Trial Term dismissed the complaint on the authority of the decision of this court on a previous appeal in the action, reported in 158 N.Y. at page 369. The Appellate Division by a divided court reversed the judgment and ordered a new trial. From that order this appeal is taken.
We are of opinion that the disposition of this case is necessarily controlled by our previous decision. The theory on which the action is brought is that where a tenant remains in possession after the termination of his lease, the landlord may *394
at his option hold him as a tenant for another year upon the terms of the prior lease, and that such is the general rule there is no doubt. (Hayes v. Aldrich,
It must be now assumed that Healey, in authorizing his firm to remain in possession of the premises, acted in direct opposition to the will of his cotenant, the plaintiff, and the only question presented is whether by his title as tenant in common he had power to suffer the firm to remain in possession without subjecting it to the liabilities that ordinarily obtain where a tenant holds over. This question was decided by the courts of this state as early as McKay v. Mumford (10 Wend. 351" court="N.Y. Sup. Ct." date_filed="1833-05-15" href="https://app.midpage.ai/document/mckay--blakeslee-v-mumford-5514083?utm_source=webapp" opinion_id="5514083">10 Wend. 351). There the plaintiffs and E. Mumford, one of the defendants, were tenants in common of a grist mill, each owning one moiety. The plaintiffs leased their half of the mill to the defendants, their cotenant E. Mumford and one W. Mumford, for the term of nine months. The defendants remained in occupation of the whole mill after the expiration of the lease, and the action was brought to recover for use and occupation the amount reserved as rent in the lease. It *395
was there held that such continuance in possession by a tenant in common or under the authority of a tenant in common did not operate as a renewal of the lease at the election of his cotenant. It was there said by Judge NELSON: "The fact of his (a tenant in common) not leaving possession does not authorize the inference that he still intends to hold under the lease; on the contrary, the presumption is that he holds under his own title, which gives him a right to the possession and enjoyment of the whole estate, liable, however, to account to his co-tenant at law. This presumption of possession by virtue of his own title may undoubtedly be rebutted, and then he would hold, as to the moiety of his co-tenant, as any other tenant, and subject to the same rules at law; but evidence that E. Mumford intended or avowed his intention to hold in defiance of the plaintiffs and in exclusion of their rights, does not rebut the presumption that he holds under his own title; it confirms it. * * * There should be evidence showing, either expressly or impliedly, a recognition of the holding after the term as tenant to the plaintiffs, or in other words, an intention to hold under the agreement or with the assent of the plaintiffs, and not merely a possession entirely consistent with his common law rights." In principle the case cited is on all fours with the one before us. There, as here, the tenants who it was claimed held over were not only the cotenant of the lessors, but also a third party, the partner of the cotenant, and the possession retained was that of the whole premises. If there be any difference between the two cases it lies in this, that in the McKay case the lease was only of the undivided share of the lessor which the tenant never offered to surrender to his lessor at the expiration of the demised term, while here the lease was of the whole property executed by both the tenants in common. If the difference in circumstances justifies any distinction in principle, that distinction would operate in favor of the defendants, for Healey could be under no obligation to surrender his undivided fourth to the plaintiff. The authority of McKay v. Mumford has never been *396
impaired by any subsequent decision in this state, but on the contrary the case itself was approved by this court on the previous appeal in this action. It has been recognized as a correct exposition of the law in Rockwell v. Luck
(
The order of the Appellate Division should be reversed and the judgment of the trial court affirmed, with costs.
Dissenting Opinion
In this case the plaintiff was the owner of three-fourths of the demised premises. The defendant Healey was the owner of the other fourth, and a member of the firm that went into possession of the premises under a written lease, agreeing to pay a stipulated rent three-fourths of it to the plaintiff and to surrender possession of the premises at the expiration of the term. The legal question presented is this: Can the defendant Healey's firm, after having entered as tenants under the lease, upon the authority of a letter from him written before the expiration of the demised term, remain in possession of the demised premises after the expiration of the term indefinitely without payment of rent and without incurring the legal obligation arising out of the *397 relation of landlord and tenant to be liable for rent for another year? Of course it is elementary law that a tenant for a year who holds over after the expiration of the term becomes a tenant for another year at the option of the landlord. But it is said that the presence of Healey, the cotenant in the firm or legal entity which became tenant under the lease, changes this rule and that during the existence of the lease he has the power to extend the right of possession indefinitely and that too without any obligation to pay any rent whatever. It is argued that this court on a former appeal decided just that proposition, and, hence, we are bound to decide in the same way now upon the principle ofstare decisis. I do not think that this court has ever decided any such proposition, and if it is law at all it will have to be promulgated now for the first time.
A brief review of the history of this case will show very clearly that this statement is correct. This case first came before the appellate court nearly ten years ago. (Valentine v.Healey, 86 Hun, 259" court="N.Y. Sup. Ct." date_filed="1895-04-11" href="https://app.midpage.ai/document/valentine-v-healey-5508427?utm_source=webapp" opinion_id="5508427">86 Hun, 259.) That was an appeal to the General Term from a decision of the trial court dismissing the complaint. It was held that the cases in this court establish the rule that where a tenant in common is in exclusive possession of the common property by virtue of his own title he is not liable for rent to his cotenant. But it was also held that this rule did not apply to this case inasmuch as Healey was not in exclusivepossession as owner, but was merely a member of a firm that was in possession as tenant under a lease. It will be seen that this proposition has never been questioned in this court. The judgment having been unanimously reversed, came before the Appellate Division again. (Valentine v. Healey,
But the learned judge who wrote the opinion in this court on that occasion went still farther and stated this proposition: "There is another view of the case which we think may properly be adopted. It may be, and doubtless is the law that a tenant in common cannot bind a co-tenant without his consent by a contract or a lease with reference to the property of which they are the owners." It is very clear that that is precisely what Healey attempted to do as disclosed by the record now before us. Before the demised term had expired and while his firm was in under a lease, without any surrender of the lease, he wrote a letter to his firm giving it permission to hold over indefinitely. I think it may be safely asserted that there is nothing in the opinion of this court on the former appeal that in the least supports any such contention. In fact, just the contrary appears from the above quotations in the opinion. I am not able to find anything in it to sustain the proposition now asserted, that Healey, as a member of his firm, while in possession under the lease and before its expiration, could write a letter to his firm giving them permission to remain in possession indefinitely without any obligation to pay rent and thus bind the plaintiff. If there is anything of that kind in the opinion I confess I have not been able to understand it. In quoting the language of the opinions I should observe that the italics are my own. From this review of the judicial history of this case, it seems to me that neither this court nor any other court ever decided the propositions now asserted in the prevailing opinion. The truth is, and that is perfectly plain from the record, that when this case was here on the former appeal it was reversed upon two questions which did not involve the merits at all. These questions were, first, that inasmuch as plaintiff's signature did not appear upon the printed copy of the lease contained in the record, then it might be presumed that Healey executed the lease for the plaintiff as his agent and so acted as his agent throughout; second, that being such agent to make the lease he had authority also as agent for the plaintiff to *400 bind him by giving the firm permission to remain in possession after the expiration of the demised term, and that as such permission was evidenced by the letter which was excluded at the trial, the ruling in that respect was erroneous. It is now admitted on all sides that both of these questions have disappeared from the case, and, hence, the reason for the former decision of this court has disappeared also. When this case came here on the former appeal the appellate court below had decided twice that this case was not within the principle of McKay v.Mumford (supra). This court did not question the correctness of that proposition; on the contrary, it acquiesced in it, and went still farther and stated the proposition quoted, and which if followed now would require an affirmance of the judgment, and I think it ought to be affirmed, since the equity and justice, and, as it seems to me, the law of the case, were on the side of the plaintiff.
GRAY, HAIGHT and MARTIN, JJ., concur with CULLEN, J.; PARKER, Ch. J., concurs with O'BRIEN, J.; WERNER, J., absent.
Order reversed, etc.