Shermer v. Paciello ( 1894 )

Opinion by

Mr. Justice Fell,

This case is before us on an exception to an order making absolute a rule to open .a judgment in ejectment entered by virtue of authority contained in a lease, and upon the averment of a breach of the covenant not to sublet. The depositions develop these facts: In August, 1889, John A. Shermer, father of the plaintiff, leased the premises in question as a fruit store to Charles Willidge. In February, 1893, the lessor having died, a new lease was made by his son, the plaintiff, to the same lessee. In August, 1893, Charles Willidge surrendered his lease and procured a new one to be executed to Joseph Paciello, the defendant, who went into possession. The three leases were exactly alike, and contained covenants against subletting. In October, 1893, Paciello called at tbe office of the plaintiff’s agent, handed him the key, and said he had moved cut. When the agent went to the premises he found Banner Herman, on whose affidavit and at whose instance the rule was granted, in possession of a part of the building and conducting a dry goods business for himself. .The lessor’s agent, for the purpose of obtaining possession, left on the premises a notice to Paciello to give security within five days for three months’ rent or deliver possession. This notice fell into the hands of Herman, who tendered security, which was refused, and judgment in ejectment was entered. Herman had been a subtenant for some months, but of this neither the plaintiff nor his agent had any knowledge.

A subtenant in possession with the consent of the landlord, or by right, when there is no covenant against subletting, may be entitled to enter security under the act of March 25, 1825, but the right now asserted by the plaintiff is not the right as against his tenant to security or possession under the provisions of that act. The first step to lay ground for that proceeding was taken, but it was abandoned; and the case before us grows out of the landlord’s assertion of the remedy secured to him by the lease for breach of the covenant not to sublet.

The defendant did not resist this proceeding, and the subtenant has no standing to do so unless he has acquired some right.

There is no evidence of a waiver of the covenant by agreement or acquiescence. The commencement of a statutory proceeding by the agent did not debar the owner from the use of the remedy provided by the lease. The only standing that the subtenant claims is that he was in possession before the date of the lease to the defendant. The preceding tenants had no right to sublet, and the testimony is distinct and clear that the property was not sublet with the knowledge or consent of either the owner or his agent, and that they had no knowledge of the possession of Herman until the keys had been delivered to the agent and he went to take possession. The possession of Herman under both Willidge and Paciello was that of a subtenant under a tenant who had covenanted not to sublet, and it gave him no right against the landlord.

The judgment is reversed.