16 How. Pr. 449 | N.Y. Sup. Ct. | 1857
Samuel B. Schenk was removed from the possession of certain premises at Eishkill, in the county of Dutchess, by virtue of proceedings had before the county judge of that county, upon the application of Charles M. Wolcott. The relation of landlord and tenant existed between them by virtue of the lease of the date of the 24th of March, 1857. Before any proceedings could be taken to remove the tenant from the demised premises, pursuant to the act entitled ‘ summary proceedings to recover the possession of lands,” &c., (2 Rev. Stat. 755,) it was incumbent on the landlord to establish three additional facts by the affidavit upon which the proceedings were founded. 1. That the rent reserved in the lease had become due and payable. 2. That its payment had been duly demanded. And 3. That default had been made in its payment. If the affidavit omitted to state, or stated insufficiently either of these facts, the judge or officer had no power to proceed.
The right to re-enter for the non-payment of rent, both at the
These authorities show the strictness required whenever the reversioner attempts to enforce his rights of re-entry for the non-payment. Where there is a personal covenant of the lessee, as in this case, for the payment of the rent, a demand of payment from him personally, either upon the land or elsewhere, would doubtless be a good demand within the meaning of the statute. In the case of Rogers agt. Lynde, (14 Wendell, 172,) the affidavit upon which the summons was issued, stated that the agent of the landlord went upon the demised premises and demanded payment of the rent, but omitted to state of whom the demand was made. The court held, that inasmuch as it appeared the demand was made upon the premises, it would infer that it was made of the tenants in possession, which would be sufficient. In the present case, the affidavit of the landlord states, that “ the sum of $350 was due and payable on the 24th day of September instant, that deponent on that day demanded said rent at the usual place of business of said Schenk, in the town of Fishkill, of his agent, who informed him that said rent could not be paid.” The demand was not made of the lessee personally, nor was it made upon the demised premises. It was made at the' lessee’s usual place of business, and of his agent, without saying who the agent was or what was the nature of his agency. The person of whom the demand was made, may have been the lessee’s agent for a special purpose, or for many purposes, without having any care over or connection with the demised premises, or any duty or authority in regard to their occupation or the payment of the rents to accrue therefor. The usual place of a man’s business, is a term of very significant import in the law merchant. And had the thing demanded been the payment of a bill of exchange or a promissory note, the place of demand would have been unexceptionable.
It is insisted, however, by the counsel for the landlord, that there can be no restitution of the premises awarded, because there is a covenant in the lease that upon failure to pay the rent at the time appointed, the estate of the lessee, and all his interest in the demised premises, should from thenceforth cease and be absolutely void. The effect of such a covenant, is not I think, to determine the estate of the lessee, and make it absolutely void. It becomes by the omission to pay the rent, voidable at the option of the lessor. Any other rule would enable the lessee to take a benefit from his own wrong. The forfeiture of the estate which may follow the default in the payment of the rent is a provision for the exclusive benefit of the lessor. He may release it or waive it by the acceptance of the rent or any other equivalent act, or he may affirm the estate of the lessee by omitting to demand payment of the rent, and to follow up such demand by the necessary measures to perfect his right of re-entry, and resume his former estate in the premises. (Clark agt. Jones, 1 Denio, 516, and the authorities there referred to.)
Hothing appears upon the face of the record to show that the rent has been demanded and payment refused. I cannot therefore say that the estate of the lessee has become forfeited.
The proceedings are reversed, and restitution awarded to the tenant with costs.