Smith v. Kerr

On the 5th day of September, 1880, the defendant was in occupation of certain premises in the vil

This proceeding was commenced by the plaintiff to remove the defendant from the premises by summary proceedings upon the ground of a failure to pay the rent due August 1, 1881, under a paroi contract for an increase of rent alleged to have been made about the 1st of December, 1880.

The defense interposed to this proceeding was, first, a denial that any such agreement was made; second, that if there had been it was void by the statute of frauds and ineffectual as a surrender of the existing lease.

Upon the destruction by fire of a structure occupied by a tenant, no obligation rests upon either the landlord or the tenant to rebuild in the absence of covenants in the lease requiring it to be done. The tenant is, however, at common law, liable to pay the rent reserved by the lease so long as any part of the demised premises remains in existence capable of being occupied or enjoyed by such tenant.

Under the statute, however, in case of destruction of such buildings, the tenant is entitled to exercise an option, either to declare the lease at an end and to quit and surrender possession of the premises, or to continue in the possession thereof until the expiration of his term paying the rent reserved by his lease. Chapter 345, Laws of 1860. The mere fact of the destruction of the building does not terminate the lease and the tenant, unless he exercises this option and effects a full and absolute surrender of the premises continues liable under the covenants of his lease for the payment of rent. Johnson v. Oppenheim, 55 N. Y., 280 .

The tenant has the right to build on the premises and occupy such building for the remainder of the term ,if he chooses to do so under the conditions of his original lease,

In the case at bar. the tenant did not elect to surrender his lease, and the landlord, with the apparent consent of the tenant, proceeded immediately to make arrangements to rebuild on the premises. Frequent communications between, the landlord and tenant occurred during the erection of the building, from which the consent of the tenant to such a proceeding must be inferred, and indeed he had charge of the work until the foundation walls were laid, and superintended their construction.

The landlord at first contemplated erecting a structure., substantially of the same material and dimensions as the original building, and had proceeded to some considerable extent in the execution - of that project, when his design was arrested by the passage of a village ordinance forbidding the erection of a wooden building in that place His plans were then changed and he concluded to build of brick, enlarging the size of the building, and as early as the middle of September had contracted with a builder to perform the work. During the course of the erection, but at what precise time does not appear, he announced to the tenant an intention to increase the rent, but stated that until he knew how much it would cost he could not tell how much more he should charge. To this the defendant replied that he expected to pay more. The rebuilding then continued until it was nearly completed, when the conversation occurred which the plaintiff claims constituted a new lease for the occupation of the premises.

Although the plaintiff’s testimony as to the contract was controverted by the defendant’s witnesses, yet as the justice rendered judgment in favor of the plaintiff we are bound to assume upon this appeal that the trial court found in favor of the plaintiff’s version of the transaction.

Nothing was said in that conversation about the making of a new lease or the surrender of the old one, but an agreement is sought to be implied from the fact that the defendant agreed to pay an increased rent. As stated by the plaintiff, the conversation was as follows: “Arnold (defendant’s agent) called me to him and asked me what I was going to charge him for rent of the building. I told

It is provided by statute that “No estate or interest in lands other than leases for a term not exceeding one year, * * * shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same.” 3 R. S. (7th ed.), p 2326, § 6.

It is therefore quite clear that the new agreement could not operate as a surrender of the old term unless by the creation of a new term inconsistent with the existing lease, an intent to do so can be clearly implied.

It was said by Allen, J , in Coe v. Hobby ( 72 N. Y., 145 : “A surrender is implied and so effected by operation of law within the statute quoted, when another estate is created by the reversioner or remainderman with the assent of the termor, incompatible with the existing estate or term. In the case of a term for years, or for life, it may be by the acceptance by the lessee or termor of an estate incompatible with the term or by the taking of a new lease by a lessee. It will not be implied against the intent of the parties as manifested by their acts, and when such intention cannot be presumed without doing violence to common sense, the presumption will not be supported. The farthest that our courts have gone is to hold that to effect a surrender of an existing lease by operation of law there must be a new lease, valid in law, to pass an interest according to the contract and intention of the parties.”

In the construction of contracts it is the duty of the court to put itself, as near as may be, in the situation of the parties and from a consideration of the surrounding circumstances, and the occasion and apparent object of the parties, determine therefrom the meamng and intent of the language employed by them in framing their agreement. At

What was it the parties undertook to accomplish by tne conversation recited ? The plaintiff evidently undertook to get an increased rent and the defendant just as certainly promised to gave it to him. The plaintiff testified that the tenant stated “ he wanted to rent the brick new store build'ing.” This might have been said by the tenant in ignorance of his legal rights, and under the supposition that the destruction of the original buildings terminated his interest therein, but however that may be, he did not indicate an intention to surrender a lease covering twelve rods of land in length and thirty feet in width, to obtain the possession of the new building alone. The sole object and purpose of the new contract seems to have been to continue the occupation of the defendant under the existing lease with an increased rent.

The old lease was neither surrendered, abrogated nor annulled, and indeed no illusion was made to it in the conversation, and the only purpose of the parties seemed to be to leave it in operation and change one of its provisions, viz.: That relating to the amount of rent reserved. There was no attempt to create a new term or to change the •extent of the estate demised, or, in fact, to execute a new lease inconsistent with the continued existence of the original one. It seemed to have been assumed by the parties that the defendant could still continue in possession of the whole premises including that part covered by the buildings, and that he should continue thus to occupy them during the unexpired term of his original lease. It would be doing violence to the plain purpose of the parties to assume that the defendant thereby intended to surrender the rights which he had in possession under his written lease for a new tenancy subject to be terminated by his lessor at the end of the month, or that he intended to surrender that portion of the property which was not covered by the buildings. No such purpose can be implied from the conversation. If it could in any way be held to have effected a new lease of

The case seems to us to come directly within the decision in Coe v. Hobby, and to be controlled by it.

The claim of the appellant that the erection by the landlord of a brick building at an increased cost was a sufficient consideration for the alleged contract is not supported by the evidence. The landlord had determined to rebuild of brick long before this conversation occurred and the building had been substantially finished before the alleged agreement was made.

So, also, the claim that the surrender of the claim torrent during the time that the building was in process of erection was a sufficient consideration, is untenable. That rent was payable under the defendant’s covenant and a paroi unexecuted agreement to discharge the claim was inoperative and void. Coe v. Hobby (supra).

The claim, also, that the agreement to allow the tenant to put in the fixtures and apply the cost thereof to the extent of $250 upon the rent has no relation to the provisions of the contract under consideration. The tenant thereby simply agreed to sustain an expense which the landlord would otherwise have borne and the promise of the landlord to apply it on the rent was an easy method for him to defray the cost of the improvement to his property.

Our conclusion is that the conversation referred to established a simple executory agreement, without considera-, tian, to alter the terms of an existing unexpired lease in which no breach had occurred and that it was,.therefore,, void.

The judgment of the general term should be affirmed.

All concur.