Peck v. Ingersoll , 1 Seld. Notes 20 ( 1852 )

This action was brought to recover $600, claimed by the plaintiffs to be due to them for three quarters’ rent of part of a store in Hew York, leased by them to the defendants. The defendants proved, in their defence, that the plaintiffs held the entire store under a lease to them, containing a clause authorizing their lessor to reenter in case of non-payment of the rent reserved; that rents were in arrear on that lease, to an amount exceeding the $600 claimed by the plaintiffs, and that they had paid that amount to the plaintiffs’ lessor, in part satisfaction of the rent due to such lessor, prior to the commencement of this suit. It did not appear that the chief landlord had demanded the rent or threatened to re-enter.

Held) that the payment was a good defence to the suit.

That the under tenants had a right to pay their rent to the chief landlord, to protect their own possession; and that such payment satisfied the rent due to their immediate landlord.

That it was not necessary for them to wait until a reentry was made or threatened, or the rent demanded. That the under tenant might pay, whenever there. existed in the chief landlord a legal right by which they might be damnified if the payment should be neglected.

(S C., 7 N. Y. 528.)