The principal question in this case is, whether the bringing of the action by the plaintiff to rec'over possession of the demised premises, by reason of the non-payment of rent for the space of twenty days next after it became due, and the obtaining of a verdict in that action, for the possession of the premises, is a bar to this action for such rent.
The lessee covenanted, that if the rent should be in arrear or unpaid for the space of twenty days next after the day specified for its payment, that then the leases and the estates granted should cease, determine, and be and become absolutely void and of none effect; and thereupon it should be lawful for the lessor, his heirs and assigns, to re-enter and have again the demised premises as his and their former es*385tates, any thing in the leases to the contrary notwithstanding. The plaintiff obtained the verdict, “ that he recover the possession of the premises ” by reason of the non-payment of the .rent that became due on the first day of January, 1853. The authorities show that the plaintiff may recover the rents reserved for the premises up to that day. In 3 Salkeld, page 3, it is said: “Lease to W. B. for life, rendering rent at Michaelmas, with a clause of re-entry for non-payment. The rent in arrear, and afterwards the lessor brought an action for the rent. Adjudged, that notwithstanding this action he (the lessor) might still enter for a breach of the condition, for the action for the rent did not affirm the lease, because it shall be intended to be brought as for a duty upon the contract.” (See 2 Platt on Leases, 470.) In Hartshorne v. Watson, (4 Bing. N. C. 178; 33 Eng. Com. Law Rep, 312,) the lease contained a provision, that if the rent should be in arrear for fourteen days, it should be lawful for the lessor to re-enter, and the premises to have again, as if the indenture had never been made. The lessee assigned the premises, and on six quarters’ rent falling in arrear, the lessor re-entered, and the assignee contended that by the re-entry the lease must be considered as never having had any existence, and, consequently, that the lessor had no right of action; but the court held the proper construction of the proviso to be, that from the time of re-entry the lessor should have the land, as if the indenture had not been made, and that the assignee was liable. “ It would be singular (said Tindal, C. J.) to hold, that to an action for rent, on an instrument under seal,' the lessee or assignee might plead non-payment, but that the lessor entered for non-payment: in other words, might deprive the lessor of his rent, because he declined to submit to any further loss.” The above statement of the case of Hartshorne v. Watson is contained in Platt’s Treatise on Leases, (vol. 2, pp. 331, 332,) and it is fully sustained by the case as reported at length, which I have examined. (See Taylor’s Landlord and Tenant, 60.)
*386[Tompkins General Term, November 15, 1859.The leases in the case at bar became void as to the rent reserved, only from the first day of January, 1853, by the enforcement of the forfeiture caused by the neglect to pay the rent which became due on that day, for the space of the next twenty days, and the demand of it at the proper time in such month. (Doe v. Paul, 3 Car. & Payne, 613. Taylor’s Landlord and Ten. 60. 2 Platt on Leases, 338.) Possession of the premises was lawfully withheld from the plaintiff prior to the first day of January, 1853, but unlawfully subsequent to that day. He might have recovered damages for such unlawful withholding, in the action for the recovery of the possession of the premises, if the complaint therein had been framed with that view. (Code, § 167, sub. 5.) And he may yet recover such damages, by action. (Id. § 455. 2 R. S. 310, 311. Holmes v. Davis, 21 Barb. 265.) These views are sustained by those expressed in Hinsdale v. White, (6 Hill, 507.) The court in that case said: “ The lease is indeed void from the day of the forfeiture, but is valid for the previous time. Compensation for possession continued after that time must be recovered by an action for mesne profits.” And the decision in that case was fully approved by the court for the correction of errors in McKeon v. Whitley, (3 Denio, 452.)
The foregoing views are sustained by other authorities; but I need not cite them; and it is unnecessary to pass upon any other question in the case. The verdict in the action must be set aside, and a new trial granted; costs to abide the event.
Decision accordingly.
Mason, Balcom and Campbell, Justices.]