Wells v. De Leyer , 1 Daly 39 ( 1860 )

By the Court.

Daly, F. J.

Upon taking the covenants together, it is plain that the premises were deurised for five years at $100 rent per year, ending ozz the 1st of Flay, 1855, with a privilege of renewal for five years, at a rent which was not to be less than §100 per annum, to be fixed in the mode pointed out in the lease, and for two additional z-enewals thez-eafter of five years each, at rents to be fixed in the same manner.

It is immaterial whether the defendant was a sub-tenant of West & Halsey, or assignee of the lease, as neither he nor West & Halsey took any steps, before the expiration ot the term, to appoint an arbitrator irz pursuance of a covenant for a renewal. The landlord, tiiz’ougli his agent, appointed an arbitrator-, of which appointment the defendant was duly notified a reasonable time before the expiz-ation of the tez-m, but though uz-ged several tiznes by the plaintiff’s agent to appoint an arbitrator-, and though he promised to appoint one, and izz fact declared that he had appointed one, aizd the arbitrator appointed on behalf of the landlord attended at the place and hour designated by the defendant to meet his arbitrator, he did not appear. The arbitrator appointed, who was also the.landlord's agent, made repeated efforts thereafter. The defendant told him he would appoint another man, but would or did not do so; and wlvzn the term was about-expiring, the landlord's agent, informed the defendant that if he remained in occupation of the premises he would have to pay $200 rent after the 1st of May, ISoo.

The landlord, by his covenant, had agreed to extend the terms at a rent to he agreed upon between the parties, and ¡f not agreed upon, to be fixed and settled upon by arbitrators. If the landlord had failed to appoint an arbitrator on his part before the expiration of the term, the lessees or their assignees, might, in an action for a specific performance, compelled the landlord to renew the lease at the rent previously paid, (Greason v. Keteltas, 17 N. Y. Rep. 496;) but as the terms expired, without the rent, at which the renewed term was to be granted, being fixed either by agreement or by arbitration, entirely through the neglect of the lessees, or their assignee, to do what they were required by' the covenant to do, the estate in the lessees, or their assigns, ended, and the right to the renewal was gone. It is urged, by the defondant, that, as no time was fixed for the appointment of an arbitrator, that the covenant is void for -uncertainty. If it is, then the lessees, or their assigns, derive no benefit from it, and it does not lie with them to complain. But I suppose that every such covenant is to have a reasonable interpretation, and that it may be gathered from it that it was the intention of the parties that the rent was to be agreed upon or fixed by arbitratian, before the new term was to begin, for which a renewed lease was to be given, and if the neglect to do so was entirely attributable to the lessees, or their assigns, there was a failure of performance on their part, and they can take no benefit from the covenant.

The defendant, if he were the assignee, having failed to do what it was incumbent on him, if he wished to have the benefit of the covenant, and having continued in occupation of the premises after the expiration of the original term, after being notified by the landlord’s agent that, if he did so, he must pay rent at the rate of $200 a year, and not having expressed any dissent, when so notified, I think he must be regarded as assenting to occupy the premises as a tenant from year to year at that rate.

Having neglected to pay the first quarier’s rent at that rate, when it was demanded, the landlord resorted to the summary proceedings given by the stature to dispossess him. .The all-davit was sufficient to give the Justice jurisdiction to issue the summons. It contained all that the statute required. The summons was served upon the defendant, and he appeared before the Justice, and put in a counter-affidavit.

What was contained in the counter-affidavit did not appear, nor did it appear, as the Justice had lost his minutes, what testimony was given, or what was litigated before him. All that is shown by the process is that the Justice rendered judgment in favor of the landlord that he should have possession of the premises described in the affidavit, by reason of the non-payment of ., , ... , ,, . rrn • u f, the rent specified therein, lhe premises were described m the affidavit as a lot of ground known as No. 206 East 26th st. in the City of New York. If there was a mistake in the number, the defendant could waive it (Ferris v. Humphrey, 4 Denio, 186), or if he took issue upon it, the judgment rendered by the Justice was conclusive against him. The only question that could arise upon the trial at the special term, was whether the proceedings before the Justice, related to the same premises, and this was conclusively shown. The judgment, given by the Justice, put an end to the tenancy subsisting by virtue of the implied agreement to pay rent at the rate of $200 a year, after the expiration of the lease to West & Halsey. 3 Rev. Stat. pp. 836, 838, 840, §§ 28, 39, 54, 5th ed.; Hinsdale v. White, 6 Hill, 507; Whitney v. Meyers, 1 Duer, 276. The defendant, having been removed from the premises, and the landlord put in possession under the warrant issued by the Justice, the entry by the defendant afterwards was unlawful. He was not then in occupation as a tenant at will, or at sufferance, or from year to year, but as a trespasser; and wrong doer, and ejectment would lie to recover possession of the premises.

The record of the proceedings for a forcible entry and detamer was properly excluded. The title to the premises is not in question in such a proceeding. The only matter inquired into, is whether the party charged entered by force upon, one, having previously a peaceable possession, and held out by force. The People v. Van Nostrand, 9 Wend. 51; People v. Leonard, 11 Johns. 504; People v. Rickert, 8 Cow. 226. The judgment should be affirmed.