McIntosh v. . Rector, Etc.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In Smith v. St. Philip's Church (107 N.Y. 610), this court construed a release, substantially like the one in this case, as bearing upon a covenant of renewal contained in a lease almost identical with the one before us, and held that the effect was to wholly discharge the lessee from any obligation to build, and that thereafter the lease stood as though no covenant to build had been inserted; but that the right to build during the term was preserved; and the lessee, in that case, having built, was held entitled to have the defendant exercise the option provided by the lease. It was said in the opinion in the case cited that the erection of a building not authorized by the lease, would be a mere voluntary act which would give no right to a renewal, and for which the lessor would not be bound to pay.

That statement was probably not necessary to the decision of the case cited, as the plaintiff there had erected such a building as was called for and authorized by the lease and had thus furnished the consideration for the renewal. We are of the opinion, however, that it correctly states the law applicable to the case before us.

The lease provided that if the lessees "shall erect such dwelling-house as is above described," and if "such dwelling-house shall be standing on the demised premises at the expiration of the term, and fully and faithfully perform all and singular the other covenants, stipulations and agreements on their part to be performed," then the party of the second part will grant a new lease or pay the value of the building.

Thus, by the express terms of the agreement, the erection of the dwelling-house and the fact that it is standing on the demised premises at the end of the term, was made the consideration for the covenant to renew the lease or pay for the building, and the performance of other covenants in the lease on the part of the lessees were conditions precedent to their right to enforce such covenant against the lessor.

Unless the plaintiff has fulfilled those conditions he has no remedy against the defendant. (P. Bank v. Mitchell, 73 N.Y. 406; Pike v. Butler, 4 id. 360.)

No action could be maintained upon the lessor's covenant until the erection by the lessee of such a building as was authorized by the lease, or some sufficient reason shown for its non-erection, or that the obligation to erect it had been waived by the lessor. (Glacius v. Black, 50 N.Y. 145.)

The fact that the lessor received rent under the lease after knowledge of the erection of the carriage factory, would not constitute a waiver of the agreement to erect a dwelling-house as a consideration for a renewal of the lease.

Receiving rent after forfeiture waives the forfeiture and affirms the lease freed from the condition. (Conger v.Duryee, 90 N.Y. 594; Taylor's Landl. Ten. § 497.) Thus, if there is a condition that the tenant will not assign the lease or sublet the premises, and the landlord accepts the rent, knowing of such assignment or subletting, he affirms the lease without those conditions. (Murray v. Harway, 56 N.Y. 337.)

But in this case there was, after the execution of the release, no covenant on the part of the tenant to build, and, therefore, there could be no breach and no waiver of such a covenant. It was entirely optional with the tenant whether or not he should erect a building on the property, but if he desired to obtain the benefit of the landlord's covenant to renew, or pay for the building, he was bound to erect such a building as was specified in the lease, and to see to it that it was standing on the premises at the expiration of the term. There was no claim in this action that the building erected by the plaintiff complied with the lease.

It was not so alleged in the complaint. The right to recover was there asserted on the ground of the erection of "a building other than a dwelling-house, by permission of and agreement with the defendant," and it was sought to establish such an agreement by parol evidence.

The trial court found as facts that the building erected by the plaintiff was intended for and was used as a carriage factory and blacksmith's shop, up to the expiration of the lease, and that it was erected without defendant's consent. That the lease had been assigned during a part of the term by the plaintiff and that the premises had been sublet from year to year down to the expiration of the lease and that such assignment and subletting was without the knowledge or consent of the defendant.

He refused to find that the release was executed to enable the plaintiff to take an assignment of the lease and erect on the demised premises a building for business purposes, and that the same was to take the place of the dwelling-house for the purpose of taking a new lease.

There was evidence to support these conclusions of the Special Term, and they cannot be reviewed in this court.

Upon the established facts, therefore, there was no waiver of the covenant against assigning and subletting, and there was a total failure of consideration for the renewal of the lease or the obligation to pay for the building.

Under such a state of facts there can be no recovery by the plaintiff.

The judgment should be affirmed with costs.

All concur.

Judgment affirmed.