The taxes and repairs for which the plaintiffs claim to recover, accrued by virtue of a lease under seal, for the term of ten years from the 1st day of May, 1871, under which the lessees took possession and occupied the demised premises. On the 29th day of March, 1875, the lessors, by an instrument in writing executed by their agent, declared that the lease above mentioned was "canceled and surrendered as of the 1st day of April, 1875." Under this instrument, possession of the premises was taken by the lessors, and they subsequently paid for taxes and for repairs which, according to the lease, the lessees were liable to pay. The question now presented is whether the plaintiffs are entitled to recover the sums of money thus paid. The terms employed in the instrument referred to, cannot I think be regarded as entirely annulling the lease so as to prevent its taking effect in reference to that which is therein excepted, or as a release of all claims for any cause of action which existed prior to April 1, 1875. It expressly provided that it should take effect as of the first day of April following its date, and hence it indicates clearly that it was intended that all existing rights of the parties up to that period of time should be reserved and should not be affected thereby. The cancellation and surrender was not absolute but qualified and restricted by its terms, and the correct interpretation of the language employed is, that prior to the time named the covenants and conditions of the lease should remain in force. The taxes which remained unpaid as well as other obligations of the lessees were not affected thereby and as to these the liability of the defendants remained the same as if no such instrument had been executed. I am unable to see why a cancellation or surrender of a lease cannot be restricted so as to limit its operation and to except therefrom *Page 205 such rights as may be provided for. If an action had been brought prior to the first of April for any liability which had then been incurred it would I think be no defense that the lease was canceled and surrendered. Nor can it make any difference because the action is brought after the time mentioned has expired. The canceling and annulling of a lease when terminated by proceedings under the statute in reference to the removal of a tenant for the non-payment of rent, does not discharge or relieve the lessee from rent already accrued on the payment of taxes and assessments charged upon the premises prior to such proceedings.
The liability of the defendants incurred prior to the execution of the instrument still continued and an action for a breach of any covenant already broken could be maintained. The cancellation related to the future and not to the past. (Johnson v.Oppenheim, 55 N.Y., 280, and authorities cited at p. 294.)
The effect of proceedings to remove a tenant for non-payment of rent is the same as if the lease had been voluntarily canceled and given up. (Rogers v. Lynds, 14 Wend., 172.) The statute (2 R.S., 532, § 43) expressly provides that the contract for the use of the premises and the relation of landlord and tenant "shall be deemed annulled and canceled." The word "canceled" is the same which is employed in the statute and it is susceptible of the same interpretation The agreement that the lease was "canceled and surrendered as of the 1st of April, 1875," did not mean that it was annihilated and destroyed absolutely but that it continued in force as to all obligations which existed at the time named. It was a reservation of any liability which had been incurred prior to that time, and not a discharge of the same Otherwise the time mentioned would be of no account and the right of the parties to restrict and limit the time when the cancellation was to take effect cannot be questioned. Even if we assume that the contract was executed it does not affect, impair or destroy rights which are expressly reserved and excepted. They stand and exist the same as if *Page 206 no contract had been made for the unanswerable reason that the terms of the agreement so provided.
The authorities cited to sustain the position that the lease was annulled and canceled before the commencement of the action have no application where as in this case rights are reserved and provision is made limiting the time when the contract is to go into effect. In the cases relied upon to sustain this doctrine there was no limitation or restriction as to the time and hence they are clearly distinguishable from the case at bar. The release in these cases was absolute and without any qualification whatever. (Fullager v. Reville, 3 Hun, 600; Beach v.Endress, 51 Barb., 570; Utley v. Healey, 1 Cow., 345.)
We think it is entirely obvious that there was no release or discharge of the plaintiffs' rights prior to the 1st of April, 1875, and the defendants were liable for any breach or violation of the covenants and conditions of the lease which accrued prior to that time.
It is a serious question whether a lease for ten years under seal can be canceled and surrendered by an instrument not under seal. Certainly if such an agreement is effective in any way, it must be in all respects and with all the qualifications and restrictions with which it is accompanied.
It is not necessary however to determine the question last considered as for the reasons stated the judgment must be reversed and a new trial granted, with costs to abide the event.
All concur, except RAPALLO, J., not voting.
Judgment reversed. *Page 207