In this case the plaintiff was the owner of three-fourths of the demised premises. The defendant Healey was the owner of the other fourth, and a member of the firm that went into possession of the premises under a written lease, agreeing to pay a stipulated rent three-fourths of it to the plaintiff and to surrender possession of the premises at the expiration of the term. The legal question presented is this: Can the defendant Healey's firm, after having entered as tenants under the lease, upon the authority of a letter from him written before the expiration of the demised term, remain in possession of the demised premises after the expiration of the term indefinitely without payment of rent and without incurring the legal obligation arising out of the *Page 397 relation of landlord and tenant to be liable for rent for another year? Of course it is elementary law that a tenant for a year who holds over after the expiration of the term becomes a tenant for another year at the option of the landlord. But it is said that the presence of Healey, the cotenant in the firm or legal entity which became tenant under the lease, changes this rule and that during the existence of the lease he has the power to extend the right of possession indefinitely and that too without any obligation to pay any rent whatever. It is argued that this court on a former appeal decided just that proposition, and, hence, we are bound to decide in the same way now upon the principle ofstare decisis. I do not think that this court has ever decided any such proposition, and if it is law at all it will have to be promulgated now for the first time.
A brief review of the history of this case will show very clearly that this statement is correct. This case first came before the appellate court nearly ten years ago. (Valentine v.Healey, 86 Hun, 259.) That was an appeal to the General Term from a decision of the trial court dismissing the complaint. It was held that the cases in this court establish the rule that where a tenant in common is in exclusive possession of the common property by virtue of his own title he is not liable for rent to his cotenant. But it was also held that this rule did not apply to this case inasmuch as Healey was not in exclusivepossession as owner, but was merely a member of a firm that was in possession as tenant under a lease. It will be seen that this proposition has never been questioned in this court. The judgment having been unanimously reversed, came before the Appellate Division again. (Valentine v. Healey, 1 App. Div. 502.) The plaintiff had recovered upon the second trial and on appeal the judgment was unanimously affirmed, and in the opinion the court said: "The letter written by Healey was a consent that the lessees might hold over, as desired by them, and if he had the power to bind the plaintiff by such consent, then the ordinary legal effect of the holding over was avoided, *Page 398 and this action cannot be maintained. It is not claimed that the plaintiff had any knowledge of this correspondence. The lease by its terms made the rent payable to each of the tenants in common according to their respective interests in the property. Healey was not authorized to act for plaintiff as his agent or otherwise, and the consent could not be operative as plaintiff's consent in any way. The only theory upon which it can be claimed that this consent of Healey's avoided the legal effect of the holding over is that he was a tenant in common with plaintiff as owner of the property, and being such tenant in common, he could give his firm the right outside of the lease to remain in the occupancy of the property. At the time this consent was given, however, he was, as we have seen, not in possession or occupancyas owner, but merely as a tenant under the lease as a member of his firm. Such was the relation assumed by him and his firm in taking the lease, and they could not change this relation duringthe term so as to affect the plaintiff's rights under the lease without his knowledge or consent." From that decision an appeal was taken to this court. (Valentine v. Healey, 158 N.Y. 369.) On reading the prevailing opinion of this court on that appeal it will be seen that none of the vital propositions that had been decided by the appellate courts below were questioned or overruled in any particular. After referring to the case ofMcKay v. Mumford (10 Wend. 351), and the principle there decided, the court said: "This rule was recognized by the General Term in this case (86 Hun, 259). But that court distinguished that case from this. Healey is not the sole lessee. The lease ran to a firm of which he was a member. In this respect the casesare distinguishable, but we fail to see why Healey, at thetermination of the lease, may not assume his authority over the premises as an owner and a tenant in common. As such tenant in common he had the right to take and occupy the whole of the premises and preserve them from waste or injury so long as he did not interfere with the right of his co-tenant to also occupy the premises." It is clearly apparent so far that there was not the slightest conflict *Page 399 between this court and the appellate courts below that had previously passed upon the case.
But the learned judge who wrote the opinion in this court on that occasion went still farther and stated this proposition: "There is another view of the case which we think may properly be adopted. It may be, and doubtless is the law that a tenant in common cannot bind a co-tenant without his consent by a contract or a lease with reference to the property of which they are the owners." It is very clear that that is precisely what Healey attempted to do as disclosed by the record now before us. Before the demised term had expired and while his firm was in under a lease, without any surrender of the lease, he wrote a letter to his firm giving it permission to hold over indefinitely. I think it may be safely asserted that there is nothing in the opinion of this court on the former appeal that in the least supports any such contention. In fact, just the contrary appears from the above quotations in the opinion. I am not able to find anything in it to sustain the proposition now asserted, that Healey, as a member of his firm, while in possession under the lease and before its expiration, could write a letter to his firm giving them permission to remain in possession indefinitely without any obligation to pay rent and thus bind the plaintiff. If there is anything of that kind in the opinion I confess I have not been able to understand it. In quoting the language of the opinions I should observe that the italics are my own. From this review of the judicial history of this case, it seems to me that neither this court nor any other court ever decided the propositions now asserted in the prevailing opinion. The truth is, and that is perfectly plain from the record, that when this case was here on the former appeal it was reversed upon two questions which did not involve the merits at all. These questions were, first, that inasmuch as plaintiff's signature did not appear upon the printed copy of the lease contained in the record, then it might be presumed that Healey executed the lease for the plaintiff as his agent and so acted as his agent throughout; second, that being such agent to make the lease he had authority also as agent for the plaintiff to *Page 400 bind him by giving the firm permission to remain in possession after the expiration of the demised term, and that as such permission was evidenced by the letter which was excluded at the trial, the ruling in that respect was erroneous. It is now admitted on all sides that both of these questions have disappeared from the case, and, hence, the reason for the former decision of this court has disappeared also. When this case came here on the former appeal the appellate court below had decided twice that this case was not within the principle of McKay v.Mumford (supra). This court did not question the correctness of that proposition; on the contrary, it acquiesced in it, and went still farther and stated the proposition quoted, and which if followed now would require an affirmance of the judgment, and I think it ought to be affirmed, since the equity and justice, and, as it seems to me, the law of the case, were on the side of the plaintiff.
GRAY, HAIGHT and MARTIN, JJ., concur with CULLEN, J.; PARKER, Ch. J., concurs with O'BRIEN, J.; WERNER, J., absent.
Order reversed, etc.