Pemberton v. Van Rensselaer

By the Court,

Sutherland, J.

It is undoubtedly true, that an avowry, bad in part, is bad for the whole; but this does not help the plaintiff, as here are two separate avowries, one for the $71, the other for the $35, and each depends upon its own merits. The first avowry is good. The defendant had a right to distrain for the rent due on the first of April, as the reservation of monthly rent must have been intended for the benefit of the landlord, and not of the tenant; for what benefit could it be to the tenant, to have the privilege of paying his rent monthly, instead of quarterly 1 and the agreement of the defendant to suspend the proceedings under the distress, was no waiver of it. He therefore had the right, on the plaintiff’s failing to avail himself of the indulgence extended to him, to retake the property wherever he *309could find it. The second avowry is bad. At common law, the landlord had no right to make a distress off of the demised premises. By the 13th section of the act concerning distresses, (1 R. L. 437,) this right is given, as qualified by the 16th and 17th sections of the same act; one of which qualifications is, that at the time of the distress, the tenant shall be in possession of the demised premises. So it was held by this court in Burr v. Van Buskirk, (3 Cowen, 269,) and what was said in Reynolds v. Shuler, (5 Cowen, 330,) does not impugn the doctrine advanced upon this point in Burr v. Van Buskirk. The distress, therefore, as to the $35 rent, having been made subsequent to the defendant’s removal from the demised premises, was illegal. The plaintiff, however, is not for this cause entitled to judgment non obstante veredicto. The defendant having succeeded on the avowry for the $71, is entitled to judgment in his favor, but he must remit the damages as to the $35 rent, due on the first of May. The motion of the plaintiff is accordidgly denied, but without costs of opposing.