Mahan v. Sewell — 6 N.Y.S. 662

Majority

p. 662

Mahan v. Sewell.

(Common Pleas of New York City and County,

General Term.

July 22, 1889.)

Headnote

Forfeiture of Lease.

A lease conditional upon the payment of rent is forfeited by the non-payment of part of the rent.

Appeal from district court.

Action by P. Mahan against Fíathaniel P. Sewell to recover the possession of land demised by plaintiff to defendant. The lease contained a covenant for the payment of rent, and a condition avoiding the lease in case of the breach of any of the covenants. There was judgment for plaintiff, and defendant appeals. ,

Argued before Van Hoesen, P. J., and Allen, J.

John McCrone, for appellant. P. Mahan, for respondent.

The counsel for the appellant seems to have honestly believed that, if a tenant pays part of the rent, he cannot be dispossessed for the non-payment of "the remainder. In this case the tenant agreed to pay part in board furnished to the landlord and his daughter and part in cash. The board he furnished, but he failed to pay the money, and summary proceedings to remove him were then taken. The argument of the tenant’s counsel is that, as a forfeiture for a breach of a condition of the lease is waived by the acceptance of rent with knowledge that the condition has been broken, the landlord waived his right to recover possession of the demised premises by taking part payment of the rent. Of course, no refutation of such a proposition is needed. The final order should be affirmed, with costs.