The Rights and Obligations of the Parties;-In respect of third persons. notice to quit, the landlord is entitled to double rent under the statute. Supreme Ct., 1811, Hall v. Ballentine, 7 Johns., 536. Compare 1 Rev. Stat., 750, § 7. 2. In respect of third persons. 83. Penalty. Since, on a lease for years, there is no implied covenant that the landlord shall repair; if, through default of repairs, a penalty-e. g., for violation of a municipal or 76. That if a tenant holds over, though for a very short period, without any unequivocal act at the time to give his holding the charac-dinance-is incurred in respect of the premter of a trespass, he is not afterwards at liberty to deny that he is in as a tenant, if the landlord chooses to hold him to that relation. Supreme Ct., 1845, Conway v. Starkweather, 1 Den., 118. 77. Penalty of guardian, &c., or husband seized in right of wife, or tenant for life, for holding over. 1 Rev. Stat., 749, § 7. 78. Tenant giving notice of intention to quit, and not so doing, liable for double rent. 1 Rev. Stat., 745, § 10. 79. Sub-tenants. A lease by the lessee to a sub-tenant for the residue of his original term, reserving rent to himself and a right to re-enter for breaches of covenants which re quired the sub-tenant to keep the covenants in the original lease, is a sub-lease as between them, and not an assignment of the original lease; and the lessee may re-enter for breaches of the conditions, although he had no reversion. [2 B. & Ald., 168; and see 1 Sandf., 105; 2 Comst., 394.] N. Y. Superior Ct., 1850, Linden v. Hepburn, 3 Sandf., 668; S. C., 5 How. Pr., 188; 9 N. Y. Leg. Obs., 80. 80. Right of sub-tenant to pay original lessor. Where the tenant, under a lease giving a right of re-entry for default in paying rent, sublets a part of the premises, the sub-tenant, in order to protect his possession, may, out of his rent, pay rent due from the first tenant to the original lessor, even without demand on the part of the latter. [1 Smith's Lead. Cas., 78; 4 T. R., 511.] The right of re-entry for default, of itself makes the payment compulsory in such a sense as to render it a valid payment to the use of his immediate lessor. Ct. of Appeals, 1852, Peck v. Ingersoll, 7 N. Y. (3 Seld.), 528. 81. Tax. Tenant for term of less than 25 years, assessed for highway tax, entitled to deduction from rent. 1 Rev. Stat., 508, § 31. As to deduction of Taxes, see also LEASE. 82. Tenant bound to give landlord notice of proceeding to recover land, or its possession. 1 Rev. Stat., 748, § 27. ises while the tenant is in occupation, the landlord is not liable. The penalty falls upon the tenant. N. Y. Superior Ct., 1848, Mayor, &c., of N. Y. v. Corlies, 2 Sandf., 301. 84. Illegal use. That a landlord is equally liable with the tenant, if with his knowledge and consent the house is used for unlawful purposes. People v. Parkes, 15 How. Pr., 551. 85. The tenant of a part of a building is not, without negligence or malfeasance, liable to the tenant of another portion of the same building for damages resulting from the defective construction of the demised premises. The owner is the person liable, if any, in such case. N. Y. Com. Pl., 1850, Eakin ». Brown, 1 E. D. Smith, 36. 86. Separate leases of warehouse. Under a lease to A. of the first story of a city warehouse, and the basement and cellar, with the appurtenances, and a lease to B. of the upper stories, with the appurtenances, for a store,— Held, that A. had a right to the hatchway and to the use of the tackle and fall, the same to be used in subordination to the like right of the tenant of the lofts above, causing no unnecessary inconvenience to him, and a right to control the folding-doors between the entry and the wareroom on the first floor in the daytime, and that both had a right to bolt them at night, for the security of their respective premises. N. Y. Superior Ct., 1849, Browning v. Dalesme, 3 Sandf., 13. 87. Water-rate. A tenant, under a hiring for one year, paid the annual water-rate for that year. After four months he procured defendant to be substituted for him for the residue of the year, and defendant took possession and used the water. Held, that the defendant was not liable to him for any part of the water-rate, nor for the use of the water. N. Y. Com. Pl., 1850, Loyd v. Fox, 1 E. D. Smith, 101. 88. A co-tenant cannot suffer the land to be sold for taxes and buy it in and hold it for As to the obligations and rights arising out his exclusive benefit, but the purchase will be of Special agreement, see LEASE. held to be for the benefit of all. [5 Johns. As to Fixtures and Waste, see those titles. I Ch., 388; 2 Id., 30.] He is bound to protect Rent. the interest of those who stand in the same relation with himself to the property. Ct. of Appeals, 1852, Burhans v. Van Zandt, 7 N. Y. (3 Seld.), 523. manor leases which exist in this State, is a rent charge, and if lessees who are tenants in common make a partition, a subsequent release by the lessor to one of the tenants confirms 89. Of the rights of third persons respecting the partition as to the apportionment of the the tenant's expectancy of a renewal, Chan-rent. [1 Whart., 337; 6 Halst., 262.] Sucery, 1835, Phyfe v. Wardell, 5 Paige, 268. 90. Fraud. A lessee, by taking possession under a lease which he was induced to accept by fraudulent representations of the lessor as to the extent of the premises demised, waives thereby only his right to rescind the contract, and not his right to recover the damages occasioned by the fraud. Ct. of Appeals, 1848, Whitney . Allaire, 1 N. Y. (1 Comst.), 305; affirming S. C., 1 Hill, 484. 91. A tenant cannot avoid rent on the ground of misrepresentations by the landlord, if he does not rescind upon discovering the fraud. N. Y. Com. Pl., 1855, McCarty v. Ely, 4 E. D. Smith, 375. III. RENT. preme Ct., 1854, Van Rensselaer v. Chadwick, 24 Barb., 833. Followed, 1855, in Van Rensselaer v. Gifford, Id., 349. Compare Van Rensselaer v. Hays, 19 N. Y. (5 Smith), 68. 97. Priority. Rent has no priority over other debts of the tenant, against property in the hands of a receiver, which is not such as the landlord might have distrained. V. Chan. Ct., 1840, Matter of Brown, 3 Edu., 384. 98. Extinguishment. Accepting a sealed obligation for rent does not extinguish it, nor affect the right to distrain for it. [3 Bac. Abr., 82, 107; 3 Lev., 267; 4 Mod., 45; 12 Id., 7; Com. R., 67, 145; 1 Vern., 490.] It makes no difference whether rent is secured by a parol lease or by indenture. Supreme Ct., 1823, Cornell v. Lamb, 20 Johns., 407. Followed, 1824, S. C., 2 Cow., 652. 99. Rent due is not extinguished by taking 92. Apportionment. If the tenant acquires the landlord's title to a part of the premises, a note and a chattel mortgage collateral to the he is entitled to an apportionment of subse-note. A. V. Chan. Ct., 1845, Lofsky v. Mauquent rent. Supreme Ct., 1839, Nellis v. La- jer, 3 Sandf. Ch., 69. throp, 22 Wend., 121. Compare Van Rensselaer v. Jones, 2 Barb., 643. 93. Without a special provision in the lease, or by statute, rent can never be apportioned, with respect to time. If the lessor puts an and to the lease intermediate the rent days,e. g., by selling the premises under a reserved power, he cannot recover proportionally for the rent. Supreme Ct., 1840, Zule v. Zule, 24 Wend., 76. 94. Executors, &c., of tenant for life who had leased lands, may recover rent or due proportion. 1 Rev. Stat., 747, § 22. 95. A rent service* at common law, is apportioned either on severance of the land from which it issues, or of the reversion to which it is incident. If it be in its nature indivisible, it is multiplied on a severance of the land. [Citing many authorities.] Supreme Ct., 1846, Van Rensselaer v. Bradley, 3 Den., 135. 96. Partition. The rent reserved in the 100. Tender. After default, a tender to the lessor in person, though off the land, is good. Supreme Ct., 1827, Hunter v. Le Conte, 6 Co., 728. To similar effect, 1811, Slingerland v. Morse, 8 Johns., 474. 101. Defence of want of repairs. Where there is no agreement on the part of the lessor to repair, the lessee cannot, when sued for the stipulated rent, set up the want of repairs against the claim to rent. Ct. of Appeals, 1850, Moffatt v. Smith, 4 N. Y. (4 Comst.), 126. 102. Failure of the landlord to fulfil agreement to keep the premises in repair, is not a defence to an action against the tenant for the rent. [11 Johns., 495; 13 Wend., 339; 1 Kern., 216.] Supreme Ct., 1857, Tibbits v. Percy, 24 Barb., 39. 103. The non-performance by the landlord, within the time specified, of an independent agreement, indorsed upon the lease, to make improvements in the premises, does not discharge the whole contract, so as to relieve the tenant from liability for rent, and release his * In Van Rensselaer v. Chadwick (24 Barb., 333), surety. N. Y. Com. Pl., 1857, Ellis v. McCor it was held that the rent in this case was not a rent service. mick, 1 Hilt., 313. 104. A nuisance incidental to any building, Eviction. and which the tenant might discover and re- had a right, under a public ordinance, to remove, and which is itself temporary,-6. g., a move on one day's notice, rented the building, noxious smell produced by dead rats,-does not entitle him to abandon the premises. Supreme Ct., 1841, Westlake v. De Graw, 25 Wend., 669; and see Christopher v. Austin, 11 N. Y. (1 Kern.), 216. 105. Rent, &c., suspended by injury to building. Lessee of a building which without his fault is so destroyed or injured as to be untenantable and unfit for occupancy, shall not be liable to pay rent thereafter, unless otherwise expressly provided by written agreement, &c., and he may thereupon surrender possession. Laws of 1860, 592, ch. 345, § 1. without covenant, for one year, and took a month's rent in advance. A few days afterwards, the authorities removed the building;— Held, that the tenant could only recover back what he had paid, less a proportionate rent for the time of his occupancy. N. Y. Superior Ct., 1852, Noyes v. Anderson, 1 Duer, 342. 111. Executors, &c., may recover rent due decedent at his death. 1 Rev. Stat., 747, § 21. IV. EVICTION. 112. Where the lessor enters wrongfully 106. After dispossession. Notwithstand-into part of the demised premises, the tenant ing that the statute which gives a summary is discharged from the payment of the whole proceeding to dispossess (q. v., SUMMARY PRO- rent, till he is restored to the whole possession. CEEDINGS), declares that when the warrant has [6 Bac. Abr., 49; Co. Litt., 148, b.; 9 Co., issued, the contract is to be deemed cancelled 135; 8 Cow., 728.] Supreme Ct., 1830, Lewis and annulled,-rent due before the warrant was v. Payn, 4 Wend., 423. issued may still be recovered by action. Su- 113. If the landlord wrongfully evicts the preme Ct., 1844, Hinsdale v. White, 6 Hill, 507. | tenant, or withholds possession, the obligation Followed [citing, also, 1 Ashm., 235; 4 Bing. to pay rent ceases till the possession is restored. N. C., 178], Ct. of Errors, 1846, McKeon v.|[15 Mass., 268; 25 Wend., 445.] If the evicWhitney, 3 Den., 452. N. Y. Com. Pl., 1855, tion is from only a part of the premises, and Crane v. Hardman, 4 E. D. Smith, 339; ap- the tenant continues to occupy the residue, proved in S. C., Id., 448. the rule is still the same, and the tenant is not 107. A landlord having dispossessed for even chargeable in an action for use and occunon-payment of rent in advance, may, never-pation for the portion he continues to occupy. theless, recover the rent. [6 Hill, 507.] N. Y. Com. Pl., 1852, Cushingham v. Phillips, 1 E. D. Smith, 416. 108. Where rent is payable in advance, the right of the landlord to recover, at least for the period of the tenant's actual occupation after rent becomes payable, is not defeated by his dispossession of the tenant under the statute, before the expiration of the quarter. N. Y. Com. Pl., 1853, Davison v. Donadi, 2 E. D. Smith, 121. An eviction from part operates as a suspension of the whole. [Citing 8 Cow., 731; 24 Wend., 445; Comyn L. & T., 524; 2 Saund. Pl. & Ev., 630; and disapproving Stor. on Cont., § 657; Tayl. Landl. & Ten., 443; 3 Camp., 513.] Ct. of Appeals, 1854, Christopher v. Austin, 11 N. Y. (1 Kern.), 216; affirming S. C., 2 E. D. Smith, 203, 209, note. To the same effect, Supreme Ct., 1857, Peck v. Hiler, 24 Barb., 178; S. C. 14 How. Pr., 155; and see Chatterton v. Fox, 5 Duer, 64. 109. Rent for a quarter in advance fell due 114. Surety. Where the landlord expelled in February, and, on default of payment, the the tenant, on the alleged ground that he kept landlord dispossessed the tenant in March. In a disorderly house, and induced the tenant's an action for the rent, Held, that the tenancy ceased on the issuing of the warrant, not from the commencement of the proceeding; and that the tenant was at most entitled only to a deduction of a proportion of the rent for April. N. Y. Superior Ct., 1852, Whitney v. Meyers, 1 Duer, 266. surety to aid him, by promising to relinquish his liability as surety,-Held, an eviction which discharged the surety. Supreme Ct., 1843, Hope v. Eddington, Hill & D. Supp., 43. 115. Several tenants. Where a party, after executing leases of portions of his farm to several tenants, granted the whole farm, with the 110. Recovery back. The owner of a reversion of the demised premises, to a tenant building which he had occupied for a number in fee, reserving an annual rent, and after of years, but which the municipal authorities such grant, entered upon the demised premises Eviction. and distrained the goods of the original tenants ances, seriously injurious to his business, as for rent accrued subsequent to the grant of the well as destructive of the comfort of himself whole estate,-Held, that such entry and dis- and his family, constituted an eviction by the tress amounted to an eviction of the principal landlord, which precluded him from recovertenant, and worked a suspension of the rent. ing. N. Y. Superior Ct., 1848, Cohen . DuSupreme Ct., 1830, Lewis v. Payn, 4 Wend., 423. pont, 1 Sandf., 260. 116. An interference by the owner or chief landlord with the possession of a sub-tenant, is not an eviction for which the intermediate landlord is responsible, and does not, as between him and the sub-tenant, suspend the rent. N. Y. Com. Pl., 1850, Luckey v. Frantzkee, 1 E. D. Smith, 47; and see Lansing v. Van Alstyne, 2 Wend., 563, note. 117. Constructive eviction. Actual entry and physical eviction are not always necessary to exonerate the tenant from payment of rent. Ct. of Errors, 1826, Dyett v. Pendleton,* 8 Cow., 727; reversing S. C., 4 Id., 581. 118. Where there has been an obstruction to the beneficial enjoyment of the whole property, and a diminution of the consideration of the contract, by the acts of the landlord, although those acts do not amount to a physical eviction, the rent is suspended. Ib. 119. Thus where the premises demised were part of a house, and the landlord made the other part a resort of disorderly persons, and a place of prostitution, and in consequence the tenant removed,-Held, that these facts tended to prove a constructive eviction, and were admissible under the usual plea that the landlord had entered and ejected defendant. Ib. Followed in the case of the interruption of the enjoyment of a railroad which was an appurtenance of the premises, by the landlord's removing the rails. Supreme Ct., 1857, Peck v. Hiler, 24 Barb., 178; S. C., 14 How. Pr., 155. 120. A physical eviction by the landlord is not necessary to relieve the tenant from liability for rent. Where the lease was of a part of a dwelling,-Held, that an intentional disturbance, by the landlord's family, for which he was chargeable, of the tenant's beneficial use and enjoyment, by petty but constant annoy In Etheridge v. Osborn, 12 Wend., 529; Ogilvie v. Hull, 5 Hill, 52; and Peck v. Hiler, 24 Barb., 178, this was said to be an extreme case; but it is approved and confirmed by Cohen v. Dupont, 1 Sandf., 260; and Edgerton v. Page, 10 Abbotts Pr., 119; S. C., 20 N. Y. (6 Smith), 281; 18 How. Pr., 859. Compare Gilhooly v. Washington, 8 Sandf., 330; affirmed, 4 N. Y. (4 Comst.), 217. 121. Disorderly co-tenant. If a landlord lets a part of a house to one tenant, and then a part of the same house to another, and the one tenant makes his part a disorderly house and a nuisance, so as to render the other portion no longer habitable, the lease to the latter is not thereby determined, nor is he excused from the payment of rent. The doctrine of eviction by a nuisance cannot be applied where the landlord lets a part of his tenement in good faith, and is not instrumental in producing the nuisance. Nor is it peculiarly the landlord's duty to initiate proceedings against the disorderly tenant for a misdemeanor (under 2 Rev. Stat., 702, § 29). N. Y. Superior Ct., 1849, Gilhooly . Washington, 3 Sandf., 330; affirmed, Ct. of Appeals, 1850, 4 N. Y. (4 Comst.),* 217. 122. Temporary interference. Where the landlord, a year and more before the expiration of the lease, wilfully undertook to let the premises, and posted a bill on the building, but desisted before the commencement of the last year,-Held, not a constructive eviction. There must be an entry and expulsion of the tenant by the landlord, or some deliberate disturbance of the possession, depriving the tenant of beneficial enjoyment, to suspend or extinguish the rent. [4 Rawle, 339.] Supreme Ct., 1843, Ogilvie v. Hull, 5 Hill, 52. 123. Alterations. The landlord's altering the wall of the house so as to make the rooms somewhat narrower, in compliance with a claim of an adjoining owner that the true boundary required it,-the tenant remaining in possession,-Held, not an eviction which suspended rent. Supreme Ct., Sp. T., 1855, Campbell v. Shields, 11 How. Pr., 565. Compare Vatel v. Herner, 1 Hilt., 149. 124. Assault. The landlord's interference with the person of the tenant on the demised premises, is not an eviction, but a trespass In the opinion of the Court of Appeals it is mentioned, as an element in the case, that it did not appear that the disorderly person was in fact the tenant of the plaintiff, but, for aught that appeared, he might have entered in hostility to plaintiff. Eviction. only. The remedy of the tenant is by action for the assault. N. Y. Com. Pl., 1856, Vatel . Herner, 1 Hilt., 149. 125. Interference with occupation. The refusal, by a landlord occupying premises in conjunction with his tenant, to permit an under-tenant of the tenant to occupy the premises demised,-Held, an eviction. [1 Stark. N. P. R., 94; 25 Wend., 443.] N. Y. Com. Pl., 1857, Randall v. Alburtis, 1 Hilt., 285. 126. Claim of third person for possession and mesne profits, not an eviction. Vernam v. Smith, 15 N. Y. (1 Smith), 327. 127. Consent. That where the tenant is present at a negotiation to relet the premises to a third person, and does not object, but proposes a surrender on his own part, a possession by such third person should not be considered an eviction. N. Y. Com. Pl., 1854, Ogden v. Sanderson, 3 E. D. Smith, 166. 128. Continued possession. A tenant who has continued to occupy the whole of the demised premises during the whole period for which rent is claimed, is not released from payment of such rent by the landlord's acts, diminishing the beneficial enjoyment of the premises during the period for which the rent is sought to be recovered. While the tenant remains in possession of the entire premises, his obligation to pay rent continues; though it is otherwise if he is compelled to abandon possession before the rent falls due. Ct. of Appeals, 1859, Edgerton v. Page, 10 Abbotts' Pr., 119; S. C., 20 N. Y. (6 Smith), 281; 18 How. Pr., 359; affirming S. C., 1 Hilt., 820; 5 Abbotts' Pr., 1; 14 How. Pr., 116. 131. -- from right resting in covenant. An eviction, to produce suspension or apportionment of the rent, must be of a part or of the whole of the thing demised, and upon which the rent is reserved; and where in a grant of land a right of common is given, not as a part of the grant, but rather by way of covenant, the landlord's excluding the tenant from the right of common does not suspend or apportion the rent. Supreme Ct., 1814, Watts v. Coffin, 11 Johns., 495. 132. Breach of covenant to improve. The lessor of a mill covenanted to dig a raceway; and the lessee took possession. Held, that the breach of the covenant did not excuse the payment of rent. An eviction consists in taking away possession; not in refusing to give it. Supreme Ct., 1834, Etheridge v. Osborn, 12 Wend., 529. Compare LEASE, 62. 133. An eviction by title paramount, from an undivided portion of the premises, is not a bar to the rent, for it may be apportioned. [2 East, 575.] Supreme Ct., 1829, Lansing v. Van Alstyne, 2 Wend., 561, 568, note. 134. Eminent domain. The act of the State in appropriating demised property under their right of eminent domain,-e. g., the diversion of a creek by the canal commissioners, is not an eviction of the lessee which will bar a suit for the rent. Supreme Ct., 1881, Folts v. Huntley, 7 Wend., 210. 135. Eviction does not affect arrears. That an eviction only suspends the accruing rent, and does not discharge that which had previously accrued. [1 Saund., 204, n. 2; Gilb. Ev. by Loft, 335; Bac. Abr. tit. Rent, 1; 4 Cow., 581; Archb. Landl. & Ten., 144, 155; Cruise's Dig., 28, tit. Rents, ch. 3, §§ 1, 2.] Ct. of Errors, 1846, McKeon v. Whitney, 3 Den., 452. Ct. of Appeals, 1850, Giles v. Comstock, 129. That continued possession for more than a year after a tortious disturbance by the landlord, precludes the tenant from claiming it to have been an eviction, to defeat the rent. N. Y. Superior Ct., 1848, Cram v. Dres-4 N. Y. (4 Comst.), 270. ser, 2 Sandf., 120. 130. Eviction from easement. If, under a lease, granting land and an easement upon other land of the grantor, with covenant for quiet enjoyment of the whole, there is a partial eviction of the tenant from the easement, under title paramount, he is, in equity at least, entitled to an abatement of the rent; and under the Code of Procedure this right may be set up as a counter-claim in an action by the landlord to recover possession for non-payment of rent. Ct. of Appeals, 1859, Blair v. Claxton, 18 N. Y. (4 Smith), 529. 136. And the rule is the same although the rent is payable in advance, and the eviction occurs before the expiration of the period in respect to which the rent claimed accrues. Ct. of Appeals, 1850, Giles v. Comstock, 4 N. Y. (4 Comst.), 270. Followed, N. Y. Superior Ct., 1852, Whitney v. Meyers, 1 Duer, 266. 137. nor rent after eviction ceases. Eviction by the landlord only suspends the rent during the continuance of the eviction. N. Y. Com. Pl., 1854, Ogden v. Sanderson, 8 E. D. Smith, 166. |