Conklin v. White — 17 Abb. N. Cas. 315

Majority

p. 315

CONKLIN v. WHITE.

N. Y. City Court; General Term,

February, 1886.

Headnote

Action fob Rent.—Lease; subtiendes.

A lessee who abandons the premises on the first day of the month, at which time the rent for that month is payable by the terms of the lease, Is not relieved from the payment of the rent thus already accrued, by the lessee’s subsequent acceptance of a surrender of the lease before its expiration, and the exercise of dominion over the premises.

A lessee who discovers very soon after taking possession the bad character of the house leased, and that the lessor’s representations were, therefore, false, must exercise his election to rescind the contract within a reasonable time, and by remaining in occupation and paying rent for several months, he waives his right to rescind.

Appeal from a judgment for the plaintiff entered upon a verdict directed by the court.

Edward S. Conklin sued Annie S. White for rent

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due under a lease of a house situated in the city of New York for the month of November, 1884.

The material facts are stated in the opinion.

Frank J. Dupignac, for the defendant, appellant.

James Flynn, for the plaintiff, respondent.

—This is an action to recover from the defendant certain rent for the month of November, 1884, under a written lease.

It appears from the uncontradicted evidence in the case, that on June 20, 1884, the plaintiff leased to the defendant, a furnished dwelling-house in this city, for the term of ten months and:seven days, from June 24, 1884, at the yearly rent of $3,900, payable in equal monthly payments in advance on the first day of each and every month thereafter. On that day the defendant went into possession, and continued therein, paying her rent monthly in advance on the first day of every month umil the first day of November, when, on demand being made upon her by the plaintiff for (hat month’s rent, she refused to pay, and afterwards in the afternoon of the same day, she personally left the house, but her sub tenants continued in possession. The action is for that month’s rent.

It must be assumed as a fact in. this case, that the defendant, who is a respectable woman, hired the house as a respectable house, and, therefore, the contract was not illegal in its character.

There is no evidence that the landlord accepted a surrender of the premises or exercised dominion over them by virtue of any abandonment and surrender until after the rent became due ; in such cases it is well established law, that the tenant is not thereby relieved from the payment of rent already accrued ; in this case the rent claimed herein, was payable iti advance on the first day of November.

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The defendant admits having discovered in the month of June, 1884, the bad character of the house; she then knew that the representations made to her were false. It was her duty then to affirm or disaffirm the contract, but having kept the house until the first day of November, and paid the rent in full until that time, she did not exercise her election of rescinding the contract within a reasonable time, and therefore is liable for November’s rent; she must act promptly, she was not at liberty to hesitate and balance advantages (Carhart v. Ryder, 11 Daly, 101 ; Schiffer Dietz, 83 N. Y. 300 ).

The judgment must be affirmed with costs.

Hall, J., concurred.

Cases cited

Schiffer v. Dietz 83 N. Y. 300 N.Y. 1881-01-18 p. 317