French v. Lawrence — 7 Hill & Den. 519

Majority

p. 519

French vs. Lawrence.

Headnote

A lease of a building was executed, reserving a specified rent, payable quarterly in advance, under which the tenant occupied during the entire term, but was prevented from havipg one room in the building, by a person in possession under a prior lease executed by the landlord. Held, that the landlord was not entitled to distrain for any part of the rent.

■ On error from the supreme court, where Lawrence brought an action of replevin against French, for certain property seized by the latter under a distress warrant for rent. The cause was tried in June, 1839, at the Albany circuit, and a verdict rendered in favor of French, which was afterwards set aside, and a new trial granted. For the facts proved on that trial, and the opinion of the supreme court, see 25 Wend. 443 et seq. A new trial took place in April, 1842, when the same facts were again proved, and further, that the lease from French to Candy was not in writing, that French had attempted to remove Candy under the landlord and tenant act, previous to the 1st of May, 1836, but was defeated, and that Lawrence was insolvent when he took the lease from French. The circuit judge decided that, as matter of law, Lawrence was entitled to recover, and the jury rendered a verdict accordingly. French afterwards moved for a new trial on a bill of exceptions, which Was denied by the supreme court, for the reasons assigned in their former opinion, and judgment rendered in favor of Lawrence, whereupon French brought error. The case was argued here by

J. Van Burén, for the plaintiff in error, and

S. Stevens, for the defendant in error.

delivered opinions in favor of affirming the judgment, concurring substantially in the view taken of the question by the supreme cdurt; and Senators

p. 520

Sherman, Strong and Wright delivered opinions in favor of reversing the judgment.

On the question being put, “ Shall this judgment be reversed?” the members of the court voted as follows:

For affirmance : Senators Backus, Barlow, Bartlit, Hard, Jones, Mitchell, Platt, Putnam, Rhoades, Smith and Works—11.

For reversal: Senators Porter, Sherman, Strong, Varney and Wright—5.

Judgment affirmed.^[1]

(a) (a) ' (a) A decision somewhat similar was made in Neal v. Mackenzie, (1 Mees, cj Welsh. 747.) The case was this: A. took a lease from B. of one hundred acres of land, and entered into possession, Eight acres of the land, however, was at this time held by C., under a prior lease from B., extending beyond A.’s term; and C. kept exclusive possession of the eight acres until half a year’s rent became due from A., the latter remaining in possession of the residue covered by his lease. Held, that the lease to A. was void as to the eight acres, that- the rent reserved in the lease was not apportionable, and that B. could not distrain for the whole or any part of it.