[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 572
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 573 I concur in the opinion of my brother VANN as to the last five counts in the complaint, but I think that the first five are also good. The question presented by the demurrer to these counts is whether a new lessee, whose lease begins at the termination of a prior lease, can, at his option, treat the prior lessee, in case he holds over, as his tenant under the terms of the original lease. That the landlord could do so, if he had not made the second lease, is unquestionable. (Schuyler v. Smith, 51 N.Y. 309. ) While it is true that in such case the agreement is only an implied one, it is one that the tenant cannot repudiate. As said by Judge EARL in the case cited: "The law sometimes steps in and makes agreements for parties which they did not mutually intend. * * * And, hence, a tenant who has obtained possession of real estate cannot dispute the title of his landlord; and, having obtained possession from his landlord, he should not be permitted to hold over, deny his tenancy and convert himself, at his option, into a wrong-doer." While there may be no privity of contract between the new tenant and the old one, there is privity of estate. (Taylor on Ejectment, p. 165.) If the new tenant sued in ejectment to recover possession of the premises, the old tenant could not put in issue his landlord's title, but could only defend by showing that such title had not devolved on the new tenant. Privity of *Page 576 contract is not necessary to confer the right of election on the new tenant for, as shown in the case cited, the right of the landlord to treat the holdover as a tenant for a new term does not spring from the contract of the parties but is the penalty imposed by law upon the trespassing tenant. It is an incident of the landlord's estate and that estate and possession under such estate he has conferred upon the new tenant. It is undisputed that if, during the term of the first lease, the landlord had conveyed his reversion the conveyance would have carried to his grantee the right of election. But it must be borne in mind that the landlord's right to an election could not accrue or come into existence during the term of the first demise, but only after its expiration. When, therefore, this right first accrued the new tenant was entitled to the estate in possession as successor of the landlord. It seems to me, therefore, that the case clearly falls within section 193 of the Real Property Law (L. 1896, ch. 547) "The grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action or otherwise, for the non-performance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him." There is every reason why the doctrine for which I contend should prevail with us. The situation of a lessee is very different in this state and most of the other states in the Union from that in England. There the landlord is bound to give possession to his tenant. (Coe v. Clay, 5 Bing. 440.) "He who lets agrees to give possession, and not merely to give a chance of a law suit." Here the law seems the reverse. In Gardner v. Keteltas (3 Hill, 330) it was held: "It is not the duty of the landlord, when the demised premises are wrongfully held by a third person, to take the necessary steps to put his lessee into possession. The latter being clothed with the title by virtue of the lease, it belongs to him to pursue such legal *Page 577 remedies as the law has provided for gaining it, whether few or many." The new lessee, and not the landlord, being thus subjected to all the inconveniences and damage occasioned by the holding over, he ought to have the same right that the landlord would possess were it not for the new lease. I think the section which I have quoted not only justifies us in holding, but requires us to hold that he has that right.
The orders of the Appellate Division and Special Term should be modified so as to overrule the demurrer to all the causes of action set forth in the complaint, with costs in all courts, and with usual leave to defendant to withdraw the demurrer and answer within twenty days on payment of such costs, and both questions certified should be answered in the affirmative.