148 N.Y.S. 736 | N.Y. App. Div. | 1914
Lead Opinion
Prior to November 3, 1909, the defendant had acquired the premises known as No. 47 Lenox avenue, in the city of New
The tenant entered into possession under this lease, the premises being at that time subject to a mortgage for $200,000 made by a former owner of the premises to the Central Trust Company of New York, and recorded April 3, 1906. While the tenant was in possession thereof under the said lease, and on October 1,1910, the defendant conveyed the premises, subject
I think the court below was right in awarding to the plaintiff nominal damages only. Assuming that there was in the lease an implied covenant of quiet enjoyment, the rule is now settled in this State, “in the absence of fault in the lessor, that the lessee can recover only such rent as he has
I am also of the opinion that in this case a covenant of quiet enjoyment was" not implied. The lease provided: “It is further agreed that this lease is accepted by the tenant as subject and subordinate to any new mortgage or mortgages which the landlord may hereafter place upon the aforesaid building, and the tenant agrees to execute any and all necessary papers required to effect such subordination.” There was no express covenant for quiet enjoyment and the lessee in accepting this lease gave to the landlord the right to place upon the premises a new mortgage or mortgages. The fact that the lease was to be subject and subordinate to a new mortgage or mortgages
I think, therefore, the judgment appealed from should be affirmed, with costs.
McLaughlin, Laughlin and Dowling, JJ., concurred; Hotchkiss, J., dissented.
Dissenting Opinion
If the following propositions are not conceded by my brethren, nevertheless I believe them to be sustained by ample authority, (1) that the lease from defendant to plaintiff’s assignor implied a covenant of quiet enjoyment (Boreel v. Lawton, 90 N. Y. 293; Mack v. Patchin, 42 id. 167); and (2) that inasmuch as the lease was not made subject to the mortgage then a lien upon the premises, the failure on defendant’s part to disclose the existence of such mortgage evidenced a degree of bad faith sufficient to entitle the lessee (plaintiff’s assignor) to recover compensatory damages. (Jacobs v. Schulte, 153 App. Div. 693, 694; Mack v. Patchin, supra, 167, 172; Marsh v. Johnston, 125 App. Div. 597; affd., 196 N. Y. 511; Friedland v. Myers, 139 id. 432, 436.)
The doctrine of constructive notice because of the record of the mortgage (assuming any kind of notice to be material) is not applicable, because while the Recording Act may be invoked as between adverse claimants to the title or an interest therein, it is not available to defendant as a bar to its bad faith in executing an instrument purporting to convey an interest which it either did not have or had under material and undisclosed limitations. (Jackson v. Burgott, 10 Johns. 157; Jackson v. West, Id. 466; Jackson v. Phillips, 9 Cow. 91; Ackerman v. Hunsicker, 85 N. Y. 13; Mead v. Bunn, 32 id. 275, 278.) Whether in the face of actual notice of the mortgage, a covenant of quiet enjoyment so far as that mortgage was concerned, would or would not be implied, is an issue which the court below refused to try, and upon this record the question is not before us. For this reason we may not consider the effect as notice of the clause giving the landlord the privilege to subordinate the lease to a “new” mortgage. I believe but one other question remains. The lease was under seal and the term was five years. It contained a clause which provided that the tenant should not assign the lease “ without the landlord’s consent in writing.” For a breach of this (and as well for a breach of other covenants) a right of re-entry was reserved to the landlord. After the term began the defendant conveyed the premises to the Llewellyn Realty Company. Thereafter, with the consent of this company, the tenant assigned the lease to one Fagenson, who, after eviction, assigned his claim for damages to plaintiff. The defendant did not consent to the assignment of the lease to Fagenson, and because of this fact it is argued that it is not liable in this action. A covenant of quiet enjoyment is a real covenant, is annexed to the estate and runs with the land.
It follows that when the defendant conveyed the premises, all interest in the lessee’s covenant not to assign passed to its grantee, to whose benefit it thereafter inured. (Mugatt v. Coe, 142 N. Y. 78.) With respect to any subsequent assignment the defendant’s consent was of no consequence whatsoever.
Judgment affirmed, with costs.