The action was brought to recover.the rent -reserved by a lease whereby the plaintiff leased certain premises to the defendant, together with the costs of certain improvements on the premises, which was under the lease to be paid, by the tenant. On the trial the court excluded evidence offered by the defendant to sustain the defense set up in the answer and directed a verdict for the plaintiff. Exceptions were taken to’ these rulings and they were ordered to be heard here in the first instance.' The- lease is annexed to the com
The answer admits the making of the lease, .that the .defendant had paid no part of the rent, dpnies knowledge or information as to
For a separate defense the defendant denies that the plaintiff did fit up the said demised premises in a proper and suitable manner for the transaction of a banking and trust company business; and as a counterclaim the defendant alleges a breach of the plaintiff’s covenants and a failure to furnish and fit up the said demised ^premises according to said agreement, or to give possession of the same to the defendant on the 1st day of February, 1900, and that the defendant has been greatly injured to his damage in the sum- of $100,000, and demands judgment for that amount.
The plaintiff served a reply to this counterclaim, but on the trial the counterclaim was withdrawn.. On the trial the plaintiff was allowed to amend his complaint and subsequently the defendant was allowed to amend paragraph 11 of his answer so as to read as follows: “ That the plaintiff wholly failed and neglected and refused to perform each and every of his covenants and agreements above alleged in Subdivisions VII, VIII, IX, and X of this amended answer; ” and paragraph 12 of his answer so that the same read : “ That on.the first day of February, 1900, and for a long time thei’eafter, plaintiff was in possession of said premises by his tenants, agents, servants, contractors, and employees, engaged in the construction,' completion and fitting up of the same. That said tenants in possession of said premises held .the same under a lease made by the plaintiff to them prior to the making of the lease annexed to the complaint herein, and said tenants were holding such possession
On- the trial the defendant admitted that - the rent sued for had been demanded and not paid. The following facts were then stipulated by counsel: “At the time- the parties to this action entered into the lease a portion of the first floor of the premises covered by the lease was occupied by. Seligsberg & Company : said lease had been made by-the" plaintiff to Seligsberg •& Company on or about May 1, 1899, for- a term- expiring May 1, 1900. The- léase was .,an oral lease (the plaintiff was notified that the defendant, would require Seligsberg & Company to vacate the premises on the 1st of February, 1900). The occupancy of the premises by Seligsberg ■& Company delayed- the ■ completion of the improvements in the premises and some of the work could not he finished "until they vacated on that date. The improvements made by the plaintiff in fitting up the premises pursuant to the lease Herein were not completed on February 1, 1900, and not until about the 1st of June, 1900, when they were completed.” The plaintiff while conceding these facts objected to their competency under the answer and this objection was sustained and defendant excepted. The plaintiff then proved that the total cost of fitting up the offices, for a trust company business was $15,723.48. The defendant, on cross-examination, sought to prove by the plaintiff that Seligsberg & Co. were in occupation of the premises from February first to May first, under a lease made by plaintiff prior to the execution of the lease to defendant, and that the occupation of the said premises prevented the completion of the premises on the 1st of February, 1900. This was objected to, the court sustaining the objection upon the ground that there was no defense set up in the answer which justified the evidence: This evidence being excluded, the defendant rested and moved to dismiss the complaint, which -motion was denied, and the court then, on motion of the plaintiff, directed a verdict for the plaintiff for the full amount including the amount from February first to September first, being seven months, and the cost of fitting up the building, for a banking office, and to this the defendant excepted. The real question presented on this appeal is whether the defendant was entitled to prove
This case was before this court upon a former appeal from an order setting aside a verdict in favor of the plaintiff and granting a new trial (96 App. Div. 236). Although there was some discussion in the opinion as to the rights of the plaintiff and the defendant under this lease, it does not seem that that question was decided. The court held that certain evidence which was admitted had no bearing upon the questions of whether the defendant on February 1, 1900, waived his right to rescind the contract, or thereafter so acted with reference to the premises that the jury could have inferred by assuming dominion over the premises, lie-elected to continue in possession under the lease; that in view of the course which the trial took, the evidence which was iinproperly admitted and the erroneous theory upon which the case was submitted to the jury, the conclusion was that the trial judge was justified in setting aside the verdict and granting a new trial, and that order was, therefore, affirmed. The . court, however, in discussing the question as to the liability of the defendant for this rent, said: “ The acceptance of the lease, therefore, under which the defendant obtained the right to the use of the entire premises from the first of February did not render him liable for the rent where a substantial portion thereof was held by another tenant under a valid lease from the plaintiff, and where, as here, the defendant never went into actual occupancy of any portion of the premises. Having notified the plaintiff of the obligation resting upon him of getting Seligsberg & Co. out and no action having been taken, so far as appears, by the plaintiff to that end, the defendant, had he so elected, would have had the legal right on the first of February to notify the plaintiff that he regarded the lease as terminated and canceled. Upon that date, when the term was to begin, the defendant was legally put to his election, and it was entirely competent for the plaintiff to show, as was attempted to be shown, that not only had the "defendant not elected to terminate the lease, but that his acts
In Trull v. Granger (8 N. Y. 115) the defendants gave the tenant a lease of certain premises on the 6th day of September, 1849, the term to commence on the 1st day of May, 1850. The defendants leased the premises to another person for five years, and he went into possession. On the first day of May the plaintiff called on the defendants, tendered them the rent for one-quarter in advance and required the possession of the premises. They refused to receive the rent and to give him possession. He thereupon brought action for damages, and it was held that that action could be maintained. The court said: “ In the present one, the lessors themselves denied the right, and refused to permit the plaintiff to occupy, in accordance with their, own lease. In such cases it seems to me very obvious that the lessee should not be driven to his ejectment, but should be allowed to bring his aiction for the damages sustained.”
It is quite evident under such circumstances that the action by the landlord for rent undei the lease would not lie. In Harris v. Greenberger (50 App. Div. 439) this court, in the second department, held in a proceeding to dispossess a tenant that where the former tenant of the landlords was in possession of the premises and insisted in holding over after the expiration of the tenancy and thus prevented the landlords from putting the tenant in possession, the tenant was relieved from further liability under the lease. That
In 18 American and English Encyclopaedia of Law (2d ed. p. 615) it is said: “ The lessor impliedly covenants to give possession 'to the lessee at the commencement of the term * * * and if the premises are wrongfully withheld by a third person it is the duty of the lessor to oust him, or, which amounts to the same thing, the failure to give possession has been held a breach of the. lessor’s covenant for quiet enjoyment.” Same volume, p. 325 : ' “ Where the landlord delivers possession of a part only of the premises and the tenant does not accept such part as a full performance by the landlord,. * * * : the landlord cannot recover upon the express agreement to pay rent.” (See, also, 1 McAdam Landl. & Ten. [3d ed.] 340.)
These cases all recognize the rule that where a third party is ■ in possession of the demised premises claiming possession under a title paraniount to the title of the lessor and the tenant is thereby excluded from possession of the premises there can be no recovery for rent under the covenant in the lease. The amendment of the defendant’s answer, whereby the defendantas a defense alleged that' the tenants in possession' of the./premises'held the same; under á lease made by the plaintiff to them prior to the - making of the lease: to the defendant, and that the said tenants were holding such possession under a title - paramount to the defendant • herein, and plaintiff thereby excluded the defendant from a "portion of the premises, was á good answer for a. demand for rent of the premises during the
I think, therefore, that the'exceptions should be sustained and a new trial ordered, with costs to the defendant to abide the event.
O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Exceptions sustained, new -trial ordered, costs to defendant to abide event. Settle order on notice. -
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1 N. Y. 311.—[Rep.