77 N.Y.S. 969 | N.Y. App. Div. | 1902
The judgment and order appealed from should be affirmed, with •costs.
The action was brought to recover rent for the month of October, 1901, upon a lease of a building in the city of Rochester, N. Y., used as a shoe factory. The lease was made by the plaintiff’s testator to the defendants Harding & Todd for the term of ten years, ■commencing November 1, 1894, at the annual rent of $5,938.19, payable monthly in advance, each monthly payment being $494.85. "The lessees were copartners and occupied the property in carrying ■on their firm business until the fall of 1897, when they dissolved the copartnership by mutual consent.
Todd went out of the property and thereafter conducted his business in another part of the city. Harding continued to occupy the leased property, forming a new partnership with his sons, and although Todd still remained liable under the lease for the rent, yet ■Harding and his new firm paid the same each month up to August,
The defendant Todd did not defend the action. His liability for the October, 1901, rent was undoubted. Harding defended, alleging that he was relieved from liability for the rent sued for, because the lease was terminated as to him by :
First. The agreement of August 7, 1901, made by Todd with plaintiffs. ’ .
Second. The notice and demand by the plaintiffs of August 9, 1901.
Third. The releasing of the property to the receivei*, Kirk.
At the close of the evidence the plaintiffs’ counsel moved for a verdict on the grounds':
First. That no ouster had been shown.
Second. That Harding remained in possession in October*.
A verdict was directed by the court for plaintiffs.
The defendant’s counsel asked to go to the jury on the question whether or not the series of actions shown, the contract of August seventh between Todd and the plaintiffs, the notice to quit of
The agreement made by Todd with the plaintiffs did not operate to terminate the lease as to Harding, or to relieve the latter from his joint liability with Todd for the rent thereunder. Todd had remained liable all' along, though Harding had for years had sole possession and had paid the'whole rent. The general assignment made by Harding & Sons, and the subsequent proceedings in bankruptcy commenced against them, seemed to indicate that Harding was in such financial trouble that Todd might have the rent'for July and August which was past due to pay. His agreement ■ was merely to protect the plaintiffs against losing their claims against him under the lease, if they should take any proceedings against Harding or the receiver, who was then ill possession. . The plaintiffs could safely rely on Todd’s liability and compel him to pay the rent. If they saw fit to make an effort to collect from Harding -or the receiver, it was very proper Todd should protect them from any loss of remedy against him for the rent, especially if the premises should chance to fall into the plaintiffs’ hands as á result of their efforts. The agreement in no way affected Harding or his liability for the rent. It did not release him from future liability under the lease.
The notice of August ninth, to'pay the July and August rent or quit, did not operate to oust Harding of possession under the lease, or to relieve him from liability thereunder. No proceedings for the removal of Harding or the receiver from the premises were commenced, and a few days thereafter the notice was withdrawn. ' Section 2253 of the Code of Civil Procedure provides that the issuing of a warrant for the removal of a tenant from demised premises cancels the lease under which they were held and annuls the relation of landlord and tenant, but it has never been supposed that a mere demand of rent and notice to quit, unless the rent was paid, had any such effect. Except as modified by the provision of the Code of Civil Procedure above referred to, the rule is that “ the ■
A demand of rent or notice to surrender premises if not paid does not, in and of itself, in any way interfere with the possession of the premises by the tenant, and does not constitute an eviction actual or constructive.
The commencement of the proceedings - in bankruptcy against Harding and the appointment of a receiver of his property, which included his interest in the leased property, and the taking possession thereof by the receiver-in. no way operated to relieve Harding from his liability to the plaintiffs under the lease. The receiver represented Harding as well as his creditors. The receiver held the property subject to the order of the court, and was finally ordered apparently to return- it to Harding. He held the leased premises as well as the assets located therein, and when he returned the property to Harding he returned his interest in the lease with it. Harding could insist as against the plaintiffs that his rights under the lease had not been taken from him by the bankruptcy proceedings, which had terminated in a return of the property and building to him. And the plaintiffs could insist that their rights in the lease against Harding had not been taken away by the appointment of the receiver, the taking possession of the property by him, the holding possession until the termination of the proceedings and the returning of the property and the leased building to Harding. Hor did the payment of rent by the receiver while he occupied the property change the result. So long as he paid the rent he could not be evicted from the property. By operation of law he held whatever right Harding had in the lease, and that was the right to remain in possession so long as he paid the rent. His payment of rent was for Harding as well as the creditors, because he represented both. The proof does not show that any new lease was made by the receiver with plaintiffs. He declined to make any. He held and claimed to hold as receiver, and only said he would pay rent while he remained in possession, under the direction of the court,'as to the amount, if there was any disagreement.
There was nothing in our view of the case, connected with or growing out of the bankruptcy proceedings or the receivership
There was under the evidence no question as; to Harding’s liability for the rent sued for to be submitted to the jury.
The judgment was properly directed for the plaintiffs and should be affirmed, with costs.
Adams, P. J., McLennan, Spring and Hiscook, JJ., concurred.
Judgment and order affirmed, with costs.