Willard v. Tillman

19 Wend. 358 | N.Y. Sup. Ct. | 1838

By the Court,

Nelson, Ch. J.

The first special plea, 1 am of opinion, is defective. The declaration set forth an assignment of the lease to the plaintiff, and notice thereof to the lessee, and then averred the non-payment to him of the rent for three quarters, which subsequently accrued, and fell due 15th December, 1834, and on the fifteenth days of March and June, 1835, specifying the amount. There is a clause in the covenant lijcniting the payment of the rent as follows : “ So long as I shall be permitted to occupy the premises described in said lease in the manner therein set forth.” The declaration averred that the defendant was permitted to occupy the premises in the manner specified, during the time the rent accrued, which was sought to be recovered. Now, the only answer to this claim for rent after craving oyer of the lease, &c. is, that the defendant did pay the lessor and the assigns and owners of the covenant the sum of $90 per year (the yearly rent) quarter]y) so long as he was permitted to occupy the premises in the manner set forth in the lease. If the plaintiff shows title in himself as assignee to the rent, the non-payment of which constitutes the breach, and which is not disputed it is difficult to understand how payment to the lessor can discharge it; and. yet the plea stands upon this view of the law; for if issue had been taken upon it, proof of payment of part if not the whole of the three quarters rent •to the lessor must have sustained it. Again: the pleader seeks to put in issue argumentatively, or by implication, a fact which accordiflg to the stipulations in the lease, would exonerate the defendant from the payment of the rent, namely, the non-permission to occupy the premises. Now, the permission to occupy during the time the rent accrued was expressly averred in the declaration : and if the pleader intended to put the fact in issue, the averment should have been directly and explicitly met. The plea could scarcely have been drawn more evasively or unlawyer like: if does not meet with certainty a single material allegation in the declaration. So general are its terms that proof of pay ment of the rent either to the lessor, to the first assignee, or to the plaintiff, or proof of non-permission to occupy the premises, might have been given in support of it in bar of the action. It is grossly defective both in substance and form.

The second and third special pleas set up the destruction by fire of the rooms rented in bar of the covenant, and assume that the qualification contained therein distinguishes the case from the application of the general rule, that continues the tenant’s liability notwithstanding this casualty. 3 Johns. R. 44. 4 Paige, 355. It is averred in those pleas that the fire originated through the negligence of the lessor; but I do not regard it, as the plaintiff is not respon sible for the negligence of the lessor.

Were we, however, to concede this to be the correct view of the terms of the lease, which is the most favorable view for the defendant, though I think it is not the true construction, still the pleas fall short of the full defence which he chooses to rescind the agreement and surrender the residue of the premises, he cannot claim to be exonerated from more than a 'pro rata abatement of the rent. 4 Paige, 355. Until then he continues liable for an amount which will bear to the entire rent, a proportion, which the value of the use of the remaining premises bears to the whole at the rent of $90 per annum. 15 Wendell, 469. For these reasons I am of opinion that the court below erred, and that the judgment must be reversed. they profess to set up. For aught that appears the defendant is still in the possession and occupation of some portion of the premises ; for independently of the three rooms de~ stroyed, he occupied a piece of land extending 200 feet upon the canal, of the value of which we know nothing, but we must presume it worth something. Clearly, until

Judgment reversed.