14 Daly 187 | New York Court of Common Pleas | 1887
If Oastler v. Henderson, decided by the English Court of Appeal (L. R. 2 Q. B. Div. 575, 21 Moak’s Eng. 277), be a precedent that we ought to follow, it is our duty to reduce the judgment, but not reverse it. In that case, the tenant left the demised premises in the early autumn of 1868, and sent the keys in December of
In England, it appears to be settled by a number of decisions, that “by letting the premises to a new tenant, the landlord does an act so inconsistent with the continuance of the tenant’s term, that he is estopped from denying that it is at an end” (observations of Cockburh, Ch. J., in Oastler v. Henderson). It is true that Baron Parke, in Lyon v. Reed (13 Mees. & W. 284), clearly showed that there was no foundation in reason for holding that the letting to a new tenant worked an estoppel in favor of the outgoing tenant, and .that it was a palpable error to say that the re-letting to a new tenant effected a surrender by operation of law. Lord Chancellor Sugden, in Creagh v. Blood (1
Where a tenant has abandoned the premises, and notified his landlord that he has done so, the re-letting does not evict him nor prejudice him in any way. If he leaves the premises without the assent of his landlord, he cannot say that he has been induced to alter his situation for the worse in consequence of his landlord’s acts or assurances. It cannot be urged that the tenant abandoned the premises because he expected, or had a right to expect, that the landlord would keep them unoccupied, and, therefore, there is no ground for saying that when the landlord re-lets, the re-letting works an estoppel. There is no basis for an equitable estoppel, because the tenant is not induced by the landlord to change his situation; he changes it of his own motion, to suit himself. When he notifies the landlord that he has quit the premises for good, it is idle to say that he is ex-
Our American courts have held that where the landlord re-let with the consent of the outgoing tenant, the re-letting would not be regarded as working a surrender by operation of law. They have also held that where the landlord notified the outgoing tenant that he would not release him, but would re-let the premises at his risk and on his account, the re-letting did not effect a surrender by operation of law. These decisions reject in toto the idea that the re-letting terminates .the lease by judgment of the law, without regard to the intentions of the parties, and make the question of surrender a question of fact, and not a question of law. They make the surrender a question of intent. The inquiry is, did the tenant intend to surrender the lease, and did the landlord intend to accept a surrender ? The re-letting of the premises by the landlord raises a presumption that he intended to terminate the lease, and to discharge the tenant from further liability, but that presumption, like any other
But there is a reason for our going still farther than any court has yet gone, and for our holding that in New York, if the tenant is unable to show that by agreement with the landlord the lease was terminated, a surrender will not be presumed from the fact that the landlord has re-let the demised premises. Though in other jurisdictions the doctrine is not unknown, yet it is in New York that the greatest effect is given to the rule that a party injured by another’s breach of contract must make reasonable efforts to render the injury as light as possible. We think that that rule is applicable to a breach of the contract of hiring and letting. It has been said that a landlord cannot have two different tenants of the same premises, at one time. As well might it be said that a servant wrongfully discharged could not have two different masters at one time: and yet no one has ever suggested that the servant could not recover damages against the master who wrongfully discharged him, though, before the term of the original employment had expired, he sought and obtained a situation under a new master. We think that, upon the ground that in .New York it is the duty, of the landlord to render his loss from the tenant’s breach of contract as light as possible, the landlord may re-let the premises that his tenant has wrongfully abandoned, and credit upon the rent that the tenant has stipulated to pay whatever he receives from the new tenant. All difficulty on the subject is removed if the demand of the landlord is regarded as a claim for damages for breach of the contract of hiring. Of course, we do not mean that the parties may not by consent cancel the lease. Where the lease is terminated by agreement, the tenant is no longer liable.
The judgment appealed from will be affirmed, unless the
Judgment accordingly.