Mann v. Munch Brewery

McLaughlin, J.:

When the defendant was dispossessed its relation with the plaintiff as tenant ceased. An eviction by summary proceedings terminates the liability of. the tenant to pay rent accruing in the future. (Code Civ. Proc. § 2253; McCready v. Lindenborn, 172 N. Y. 400; Michaels v. Fishel, 169 id. 381.) Nor" is the tenant thereafter liable in damages for failure to perform the covenants contained in the lease unless there is an express provision permitting the landlord to re-enter, lease the property and hold the tenant liable for the difference between the amount received and the amount agreed to be paid. (Slater v. Von Chorus, 120 App. Div. 16.)

In the present case there is no proof that the lease was ever assigned to the defendant or that it ever agreed to perform any of the covenants contained in it other than to pay rent. The letter set out in the dissenting opinion, in which defendant said it would “assume the lease,” was in answer to one from the plaintiff asking who was going to pay the rent. Obviously it refers only to the payment of rent while defendant was in possession. There are several covenants by the original tenant in the lease: (a) To use the premises only for a saloon; (b) to keep the premises in repair during the term; (c) to comply with all the requirements of the municipal authorities; (d) to exempt the landlord from liability for accidents, and (e) to pay for insurance of the plate glass in that portion of the premises covered by the lease. It can no more be said that the defendant after being dispossessed was liable for damages under the covenant to pay rent than it can that it was liable for failure to carry out the other covenants, which had been made impossible by the plaintiff herself. Before the defendant can be made liable in damages something more must be shown than that it was in possession with the consent of a tenant to whom the plaintiff leased her property.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Clarke, P. J., and Page, J., concurred; Scott and Smith, JJ., dissented.