Bloomer v. Merrill — 1 Daly (N.Y.) 485

Majority

p. 485

Elisha Bloomer v. Warren M. Merrill.

Headnote

The statute of 1860, ch. 345, permitting lessees to surrender buildings rendered untenantable by the elements, applies only -where the injury or destruction occurs after the lessee’s entry, and not where it exists at the time of making the lease.

The proceedings before a Justice, who loses jurisdiction by failing to render his decision within the statutory time, are null, and constitute no bar to a recovery on the same cause of action in a subsequent suit.

A fcnaut informed his landlord that he should leave his premises on the 1st of January, and was told that if he did so, the landlord would let the premises on his account and hold him responsible for the rent. Subsequently, the landlord sent a person to occupy the house, and the tenant moved out without further remark,—Held, that this did not release the tenant from his lease. .

Appeal by the defendant from a judgment of the Marine Court.

oTIie plaintiff brought a suit iu the Marine Court to recover a balance of rent due from ¡¡November 1st, 1S63 to May 1st, 1861. It ivas admitted that the plaintiff leased the premises in question to the defendant for six months from the 1st of ¡¡November at §35 per month, and that he, defendant, had paid but 390 on account of it. It appeared, however, that on the first of December, the defendant went to the plaintiff, and told him the place was in such bad condition that it was not fit to live in, and he should move on the first of January. The plaintiff told him if he did, he would rent the premises on his account, and would hold him responsible for the rent. On the 2-Sth of December, a person, sent by the plaintiff, came to tlie premises anu demanded possession, whereupon the defendant moved out. This the defendant claimed was a surrender and acceptance by the landlord freeing him from liability for the rent. lie further claimed that' the premises were in an

p. 486

untenantable condition, and on the trial several questions were put to show their state in ¡November and December, but -were all overruled.

It also appeared that in Januárjq the plaintiff had commenced an action in a District Court for the rent, which was submitted to the Justice of that Court for decision, but that no decision was rendered in that action.

The Justice of the Marine Court directed a verdict for the plaintiff) and the defendant appealed to the General Term of the Marine Court, and from their affirmance the defendant appealed to this Court. ...

David McAdam, for the appellant.

Robert H. Corbett, for the respondent.

By the Court.

There was no provision in the agreement, which was in writing, that the landlord should make any repairs, and when that is the case, the tenant takes the premises for better or for worse, and must pay the rent for the term demised, the landlord being under no obligation to repair them (Mumford v. Brown, 6 Cow. R., 475). The statute of 1860 (Laws of 1860, p. 592), must he held to apply only where the building "is destroyed or so injured by the elements or other cause, as to become untenantable and unfit for occupancy,” after the tenant has been in occupation. It never could have been the intention of the statute that a tenant might hire* a dilapidated house for a certain time, agreeing to pay a specified rent for it, and that then without any material change in its condition he should have the right to quit and surrender it whenever he pleased. The statute was evidently intended to relieve tenants in cases analogous to that of Weigall v. Waters, 6 T. R., 488, where during the term the building was damaged so severely by a tempest as to become untenantable, and yet the .tenant was held bound for the rent. The offer of the defendant in this case was to. show what was the condition of the premises in November and December. The defendant hired them on the 6th of ¡¡November, and, in my view of the statute, the evidence was immaterial. unless the defendant was prepared to prove that from some cause occurring after the 6th of November, they had become

p. 487

untenantable and unfit for occupancy, and his offer did cot go to that extent.

The Justice having failed to render his decision within the time limited by law, lost jurisdiction of the cause, and the plain tiff’s only remedy was to sue again (Wiseman v. The Panama Railroad Co., 1 Hilt., 301; Watson v. Davis, 19 Wend., 371 ; Berrian v. Olmstead, 4 E. D. Smith, 279). The proceedings in the District Court were no bar.

The defendant admitted that the plaintiff said that he would let the premises on his account, and that he would hold him responsible for the rent, after the defendant told him he would leave at the end of December. The letting of the premises therefore, to Price, in January, was no evidence of surrender. The judgment, in my opinion, should he affirmed.

Judgment affirmed.