Valentine v. Healey

The plaintiff and the defendant Healey are the owners of premises situated in West Forty-Third street, in the city of Hew York as tenants in common; the plaintiff being the owner of three undivided fourths thereof, and the defendant Healey being the owner of one undivided fourth. In May, 1891, the defendants Healey and Zabriskie were copartners in business, under the firm name of Healey & Co., in a limited partnership; the said defendants being the general jjartners, and one Williams the special partner. In said month the plaintiff and the defendant Healey, as partners of the first part, leased the premises in question to said firm of Healey & Co., by an indenture of lease under seal for the term of one year from the 1st of May, 1891, at the yearly rent of §8,500, payable quarterly, as follows, namely: To the plaintiff $1,593.75, and to the defendant Healey $531.25, with privilege of renewal for two years at $7,000 per year. The lease contained the usual covenant that at the expiration thereof the lessees would quit and surrender the premises in good order. Healey & Co. went into possession under said lease, but did not quit the premises on the 1st of May, 1892 ; nor was the lease renewed, but they held over, and remained in possession for some time thereafter.

This action was subsequently brought to recover a quarter's rent as falling due on the 1st of August, 1892 ; the plaintiff claiming that, by such holding over, the defendants had elected to continue their tenancy for another year. Upon the trial the court held that, the defendant Healey being a part owner of the premises, it was to be presumed that he remained in' possession with his partner as owner, and not as lessee, and that, therefore, the remaining in possession did not entitle the plaintiff to treat the lease as renewed for another year, and dismissed the complaint This .ruling of the court is claimed to be supported by the cases of Mumford v. Brown, 1 Wend. 53 ; MoKay v. Mumford, 10 id., 351; Dresser v. Dresser, 40 Barb. 300 ; and Wilcox v. Wilcox, 48 id., 329 . The tenor of these cases seems to be that where a tenant in common is in exclusive possession of the common property by virtue of his own title, unless he actually excludes his co-tenant, he is not liable to such cotenant, even for use and occupation. Thus, where a tenant in common had accepted a lease from his cotenant of such co-tenant’s interest in the property, and held possession of the whole property after the expiration of the lease, he is to be deemed in possession by virtue of his own title, rather than to be in possession as holding over under the lease. A different rule seems to have been established in England. Leigh v. Dickeson, 12 Q. B. Div. 194. In that case and the cases therein cite 1 it seems to be expressly held that a tenant in common may maintain an action for use and occupation against his cotenant where the obligation to pay rent has been created by a lease. We think, however, that the authorities cited from this state are opposed to this rule, and they, of course, must be followed. Ho case, however, has been cited where a party has gone into possession under a lease of the whole of the premises, including his share and that of his cotenant, and he has held over, which fie

We think, therefore, that the exceptions should be sustained, . and a new trial granted, with costs to the plaintiff to abide the event.

All concur.