Decker v. Sexton

This was a proceeding by the landlord to recover possession of the premises known as “No. 55 Whitehall Street,” this city, for holding over after the expiration of the term. The petition alleged a monthly letting from July 1 to August 1,1896, by the landlord to Thomas E. Sexton, the tenant; the other parties being under-tenants or assigns. The tenant, Sexton, did not appear. The other parties answered, denying the monthly letting and holding over alleged, and setting up a written lease dated April 13, 1896, executed by the landlord to Thomas E. Sexton, for five years from May 1,1896. The monthly letting was made under the following circumstances: It appears that on April 13,1896, the landlord entered into an agreement with Sexton, the tenant, by which he demised the premises in question for the term of five years from May 1,1896, to May 1,1901, at the yearly rental of $5,000 for the first year and $6,000 per year for the remaining four years, in equal monthly payments in advance. The premises prior to the demise had been occupied as a storage ware

“It is hereby understood and agreed by the said Sexton that'he will, immediately upon the execution of this lease, proceed to alter the said premises, subject to the approval of the said ’Decker as aforesaid, and to fit up and to furnish the said premises for the purposes of the business aforesaid at a cost not less than $5,000, and shall, when said alterations, fitting, and furnishing are completed, and on or before the first day of May, 1896, properly execute and deliver to the said Decker a chattel mortgage upon all of the personal property in the said building, including bar and bar fixtures, chandeliers and other gas fixtures, pool and billiard table or tables, and hotel and other furniture of every description in said premises, and of all of which said personal property the said Sexton shall deliver to the said Decker a full and true inventory on or before May 1, 1896. The said chattel mortgage shall be a first lien on said property, and shall be conditioned upon, and shall be held by the said Decker as collateral security for, the performance by the said Sexton of all the terms, conditions, and agreements of this lease by the said Sexton to be kept and performed, and for the payment by the said Sexton to the said Decker of the rent hereby reserved for the said leased premises. It is the intention of the parties hereto, and this instrument is executed by the said Decker upon the distinct understanding, that this lease shall be delivered to and held by Messrs. Townsend & Dyett, attorneys, of the city of New York, in escrow, and is to be delivered by them to the said Sexton, and is to take effect only from the time that the said Decker shall certify in writing to the said attorneys that he (the said Decker) has received the said chattel mortgage as above provided.”

To enable Sexton to comply with this provision, and thereby make the agreement operate as a lease, it was orally agreed that the premises should be rented to Sexton from April 13, 1896, to May 1, 1896, and the tenancy thus created was with the like object renewed from May 1 to June 1, from June 1 to July 1, and from July 1 to August 1, 1896. To prevent any misunderstanding, and to obviate any question of waiver, an agreement in the following words was entered into:

“Received, N. Y., May 1, 1896, from Thomas E. Sexton, the sum of four hundred and sixteen and 06/ioo dollars in full payment of the rent to June 1, 1896, of the premises No. 55 Whitehall street, in the city of New York. The time of the said Sexton to perform the terms and conditions of ‘subdivision seventh’ of the agreement of lease between said Sexton and myself, dated April 13, 1896, is hereby extended to June 1, 1896. The payment or acceptance of said rent or the execution of this paper is not intended to be, or to have the effect of, a delivery of the said lease, which is now held in escrow by Townsend & Dyett, Bsqrs. David H. Decker.

“I hereby agree to the above extension upon the terms therein stated.

“N. Y., May 1, 1896. Thomas E. Sexton.”

On June 1 and July 1, 1896, similar agreements were executed by which the time was extended to August 1, 1896, on the same condition. The landlord claimed that the terms and conditions of "subdivision seventh” were not complied with, in that Sexton did not execute to him a chattel mortgage upon the property therein par

Sexton, the tenant, testified that the understanding with the landlord was that the hiring should be by the month, as stated by the landlord, and that when he (Sexton) should produce a satisfaction piece of the Hupfel mortgage, and bring evidence that the mechanics’ who did the work on the premises, and the dealers who had supplied the furniture, had been paid, the lease was to become operative, but not before. It was claimed by the undertenants that the Hupfel mortgage had been satisfied. But the evidence shows that, although a satisfaction piece had been executed and sent to the Limbeck & Betts Eagle Brewing Company, the party advancing the money for it, the delivery was not accepted by it, for that company insisted it was to have an assignment of the mortgage, and that it was to be held by it as security. Mr. Buster, the attorney for that company, testified that it was to have a first mortgage on everything in the place, and that the Hupfel Company had, by telephone, agreed to assign its mortgage to his company. The satisfaction piece was not placed on record for that reason, but was kept by the Limbeck Com

Even if these results followed, the undertenants maintain there was a waiver of all right on the part of the landlord to object, because, in a conversation had by one of them with the landlord’s son, his general agent, the son had said that the Hupfel mortgage, being a brewer’s mortgage, "was of little or no consequence, and that he would speak to his father about it. There is no evidence that the subject was ever mentioned to the father, or that he had ever said or done anything which could be construed as an assent to any such proposition; and the son testified that he had never made any such statement. The son had no power by any such conversation to waive the privilege, which the landlord had reserved to himself, that he

The undertenants also insist that there was a waiver, because the mortgage to the landlord was filed July 17, 1896, and this was evidence of an acceptance of it under the contract. Mr. Levy, a clerk in Townsend & Dyett’s office, explained this as follows:

“Mr. Sexton came into my office with Frederick H. Decker. They came there by appointment, for the purpose of executing that mortgage. The mortgage was read over to Mr. Sexton, and executed. I stated to Mr. Sexton that it would be held by me. * * * I even stated to him that I might file it for the purpose of having it on record for what it is worth, and in the meantime, or immediately after, I would have the record searched. If the mortgage proved to cover, in the first place, the property contemplated by the seventh subdivision of the lease, and proved to be a first lien on that property, and if, in addition to that, Mr. Sexton had satisfied all the mechanics’ liens, the claims of the men that worked about the place, and proved to us that he had paid for all the property in that place, and which was embraced in the mortgage, that Mr. Decker would accept that as the mortgage under subdivision seventh of the lease. Mr. Sexton assented to that, and said all claims would be paid.”

Frederick H. Decker, the landlord’s son, and Sexton, the tenant, substantially corroborate this story. It also appeared that the mortgage had never been delivered to the landlord, that he had never seen it, that he did not direct the filing of it, and knew nothing of it except from what he had heard at the trial. It is difficult to found waiver on these facts. Waiver implies an election of the party to dispense with something of value, or to forego some advantage which he might, at his option, have demanded or insisted upon (Warren v. Grane, 50 Mich. 301 , 15 N. W. 465 ; Insurance Co. v. Todd, 83 Ea. St. 275), and must be by one in possession of full knowledge of the material facts, and with intent to waive. 28 Am. & Eng. Enc. Law, 527; Bish. Cont. (Ed. 1887) § 792. The waiver must be supported by an agreement founded upon a valuable consideration, or the act must be such as to estop the party from insisting on the performance of the contract. Ripley v. Insurance Co., 30 N. Y. 164 .

In Underwood v. Insurance Co., 57 N. Y., at page 505, the court said:

“The doctrine of estoppel lies at the foundation of the law as to waiver. While one party has time and opportunity to comply with a condition precedent, if the other party does or says anything to put him off from his guard, and to induce him to believe that the condition is waived, or that a strict compliance with it will not be insisted on, he is afterward estopped from claiming nonperformance of the condition. Unless there is some consideration for a waiver, or some valid modification of the agreement between the parties which contains the condition, I think there can be no waiver of a condition precedent, except there be in the case an element of estoppel.”

“The true rule, I think, is laid down in Ripley v. Insurance Co., 30 N. Y. 136 -, as follows: ‘It seems to me that,a waiver, to be operative, must be supported by an agreement founded on a valuable consideration; or the act relied on as a waiver must be such as to estop the party from insisting on performance of the condition.’ ”

See, also, Shapley v. Abbott, 42 N. Y., at page 448. These cases have not been questioned, except in their application to proofs of loss in insurance cases. Smith v. Insurance Co., 47 Hun, at page 40.

In Stenton v. Jerome, 54 N. Y., at page 488, the court said:

“It is a principle as old as the common law that a cause of action once vested can only be discharged by a release under seal, or the receipt of something in satisfaction.”

See, also, McKnight v. Dunlop, 5 N. Y., at page 544, and cases cited; Christianson v. Sinfard, 19 Abb. Prac., at page 223; Baylis v. Usher, 4 Moore & P. 791; Bowman v. Teall, 23 Wend. 309 ; Willoughby v. Backhouse, 4 Dowl. & R. 539.

The agreement as to the lease was executed by the landlord personally, and not by the son as his agent, and the latter had no authority to alter its provisions contrary to his father’s wishes. There being no proof that the landlord, by any act or word, personally waived the performance of the seventh subdivision of the lease, or any part thereof, waiver must be found in the alleged conversation with the son, or that defense must be deemed wholly unproved. The conversations with the son were objected to, and admitted under exception. The admissions or declarations of an agent are received against the principal, not as admissions or declarations merely, but as parts of the res gestae; hence only such as accompany the transaction in which the agent acted can be proved, and what he said at a subsequent time is inadmissible. Luby v. Railroad Co., 17 N. Y. 131 , 133; Thallhimer v. Brinckerhoff, 4 Wend. 394 , 397; Fogg v. Child, 13 Barb. 246 ; Budlong v. Van Nostrand, 24 Barb. 25 ; Isles v. Tucker, 5 Duer, 393 ; Hubbard v. Elmer, 7 Wend. 446 ; Kelly v. Kelly, 2 E. D. Smith, 250; Vail v. Judson, 4 E. D. Smith, 165; Dart v. Walker, 3 Daly, 136 . The rule excluding the agent’s declarations unless of such a character, applies with equal force whether the agent is a general or special one, or the principal an individual or corporation. White v. Miller, 71 N. Y. 118 . Without further discussing the effect of the exception to the admission of the agent’s declarations, it is apparent that the evidence received as to the alleged conversation did not operate as a waiver of the condition stated.

There was no estoppel, for the party sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act or admission is inconsistent with the claim he professes to make. The other party, too, must have acted upon the strength of such admission or conduct. Grange v. Palmer, 56 Hun, at page 487, 10 N. Y. Supp. 201 ; Brown v. Bowen, 30 N. Y. 519 ; Rubber Co. v. Rothery, 107 N. Y., at page 316, 14 N. E. 269 ; 7 Am. & Eng. Enc. Law, 17; Bigelow, Estop. (4th Ed.) 620.

In Lomer v. Meeker, 25 N. Y., at page 363, the court said:

"The witness was not impeached or contradicted. His testimony is positive and direct, and not incredible upon its face. It was the duty of the court and jury to give credit to his testimony. The positive testimony of an unimpeached, uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. They are bound to believe, for judicial purposes, such testimony, and it would be, in an instance like this, the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncontradicted, and undisputed evidence.”

See, also, Kelly v. Burroughs, 102 N. Y. 93 , 95, 6 27. E. 109; Plyer v. Insurance Co., 121 N. Y. 691 , 692, 24 N. E. 929 ; Dwight v. Insurance Co., 103 N. Y. 341 , 358, 359, 8 N. E. 654 ; Herring v. Hoppock, 15 N. Y. 409 , 413; Storey v. Brennan, Id. 524 ; Elwood v. Telegraph Co., 45 N. Y. 549 ; People v. Cook, 8 N. Y. 67 ; Arms v. Arms, 13 N. Y. St. Rep. 196 ; Newton v. Pope, 1 Cow. 109 , 110; Branch v. Levy, 46 N. Y. Super. Ct. 428 ; Cunningham v. Cans (Sup.) 29 N. Y. Supp. 979 . The exceptional rule that, where the witnesses are interested, the case must be submitted to the jury, cannot be applied here, for the landlord and his son were not only corroborated by Sexton, the tenant, but by the writings as well. The settled rule is that a direction to find a verdict for one of the parties is always proper where a contrary verdict would be set aside on the ground that it was against evidence. People v. Cook, 8 N. Y. 67 , 75; Herring v. Hoppock, 15 N. Y. 409 ; Storey v. Brennan, Id. 524 ; Budd v. Davis, 7 Hill, 529 ; McMullen v. Hoyt, 2 Daly, at page 278; Cagger v. Lansing, 64 N. Y., at page 427; cases cited in Bank v. Sirret, 97 N. Y., at page 324; Williams v. Guile, 117 N. Y., at page 347, 22 N. E. 1071 ; Bulger v. Rosa, 119 N. Y. 459 , 24 N. E. 853 ; Foley v. Royal Arcanum, 78 Hun, 222 , 28 N. Y. Supp. 952 .

In Wilds v. Railroad Co., 24 N. Y., at page 433, the court said:

“No legal principle compels him [the judge] to allow a jury to render a merely idle verdict. The full extent of this position has been held by this court (Johnson v. Railroad Co., 20 N. Y. 73 ) in saying that, ‘To carry a case to the jury, -the evidence on the part of the plaintiff must be such as, if believed, would

authorize them to find that the injury was occasioned solely by the negligence of the defendant.’ Oan this be true without holding that, in every case where a verdict is set aside as against the clear weight of evidence, the court should take the decision of the case from the jury? Certainly it is not easy to conceive any other definite position which would be consistent with the decisions. Steves v. Railroad Co., 18 N. Y. 422 .”

The court ought to have directed a verdict in favor of the landlord, as requested at the trial (Douglas v. Seiferd, 18 Misc. Rep. 188 , 41 N. Y. Supp. 289 ), and the exception to the refusal presents error.

The tenants’ counsel challenged the landlord’s right to maintain the proceeding, on the ground that he had not complied with chapter 303 of the Laws of 1882, which now forms part of the Revised Statutes (9th Ed.; volume 3, p. 2546), and reads as follows:

“No monthly tenant shall hereafter be removed from any lands or tenements in the city of New York or in the city of Brooklyn on the grounds of holding over his term (except when the same' expires on the first day of May) unless at least five days before the expiration of the term the landlord or his agent serves upon the tenant, in the same manner in which a summons in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy, and that unless the tenant removes from said premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom.”

Prior to the passage of this act a monthly tenant could be dispossessed without the service of any notice other than a summons or precept issued according to the command of the statute; and the only condition imposed by tlie act is to require notice to the tenant, for, while he might be in possession under a monthly holding, the landlord was not chargeable with notice of the nature or duration of the subtenancies which the tenant might create. Notice in this case was served upon the tenant, and that complied with all legal requirements. Hence there is no merit in the objection made.

The jury found a verdict in favor of the tenant and undertenants, and the landlord moved for a new trial under chapter 748 of the Laws of 1896, which motion the justice properly denied on the sole ground of want of power. This act authorizes a justice of a district court to set aside the verdict of a jury rendered “in an action,” and does not apply to summary proceedings, which are denominated “special proceedings” as distinguished from “actions.” Dorschel v. Burkly, 18 Misc. Rep. 240 , 41 N. Y. Supp. 389 . The only remedy open to the landlord after the verdict was the appeal which he has taken.

The final order must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.