Conklin v. White

Hyatt, J.

This is an action to recover from the defendant certain rent for tbe month of November, 1884, under a written lease. It appears from tbe uncontradicted evidence in tbe case tbat on June 20, 1884, tbe plaintiff leased to tbe defendant a furnished dwelling-house in this city, for tbe term of ten months and seven days, on June 24, 1884, at tbe yearly rent of $3,900, payable in equal monthly payments, in advance, on tbe first day of each and every month thereafter. On tbat day tbe defendant went into possession, and continued therein, paying her rent monthly in advance, on tbe first day of every month,, until tbe first day of November, when, on demand being made upon her by tbe plaintiff for that month’s rent, she refused to-pay, and afterwards in tbe afternoon of tbe same day she personally left tbe bouse, but her sub-tenants continued in possession Tbe action is for tbat month’s rent

It must be assumed as a fact in this case tbat tbe defendant, who is a respectable woman, hired tbe bouse as a respectable-house, and therefore tbe contract was not illegal in its character.

There is no evidence tbat tbe landlord accepted a surrender of tbe premises or exercised dominion over them by virtue of any abandonment and surrender until after the rent became due. In such cases it is well established law tbat tbe tenant is not thereby relieved from tbe payment of rent already accrued-In this case tbe rent claimed herein was payable in advance on tbe first day of November.

Tbe defendant admits having discovered, in tbe month of June, 1884, tbe bad character of tbe bouse. She then knew tbat tbe representations made to her were false. It was her duty then to affirm or disaffirm tbe contract; but having kept tbe bouse until tbe first day of November, and paid tbe rent in full until that time, she did not exercise her election of rescinding tbe contract within a reasonable time, and therefore is liable-for November’s rent. She must act promptly. She was not. at liberty to hesitate and balance advantages (Carhart agt. Ryder, 11 Daly, 101; Schiffer agt. Dietz., 83 N. Y., 300).

Tbe judgment must be affirmed, with costs.