Oliver v. Moore

In 1884 the plaintiff, Mrs. Margaret A. Oliver, occupied the house No. 675 Fifth avenue, in the city of New York, and rented rooms and took boarders there. On the twenty-ninth day of September in that year she entered into an agreement with Miss Harriet Gross, in writing and under seal, whereby she let unto the said Flarriet Gross, “ all those two certain rooms situated in -the third story of house No. 675 on Fifth avenue, in the city of New York, being the front and rear rooms on said floor * * * for the term •of eight and one-half months from the first day of October, next, A. D. 1885, at the rate of twenty-seven hundred and twenty-five dollars, to be paid in weekly portions of seventy-five dollars each, beginning on the said first day of October, 1885.” By the .same instrument Miss Gross, for herself, her heirs, executors .and administrators, covenanted and promised to pay the rent and not at any time during said term to let or demise the premises or rooms to any person or persons whatever without the consent of Mrs. Oliver, and further agreed at the expiration of said term to yield up and surrender the possession of said premises.

The agreement also contained the following provision: “ And it is further agreed, by and between the parties hereto, and the said Margaret A. Oliver doth covenant and promise that for and in con" ¿deration of the said mentioned sum herein agreed to be paid for .said rooms, that she, the said party of the first part, will board or furnish for the said party of the second part suitable food and in a suitable manner for herself and her waiting maid for the whole term for which this agreement is made, without additional charge or •expense to the said Harriet Gross other than is herein contained.”

Miss Gross and her maid entered upon the occupation of the rooms, and continued to occupy them until November 27, 1885, when Miss Gross died. The compensation specified in the agree

Upon the trial the contention of the plaintiff was, as it now is, that the agreement under which the defendant’s testatrix took and occupied the plaintiff’s rooms was binding upon the executor of the decedent for the full term, whether such agreement be regarded as a-lease or as a contract for board and lodging. The plaintiff also insists that the defendant was not entitled to any offset upon the theory that the plaintiff had saved anything by reason of not being obliged to board the decedent for the whole term; and that the plaintiff was. entitled to recover interest on each weekly payment from the time it became due until the time when the case was tried. The defendant, on the contrary, contended that the contract being for the boarding of Miss Gross, was dependent upon her continued existence, and that all obligation upon her part or in behalf of her estate thereunder terminated immediately upon her death; and hence that the plaintiff was not entitled to recover at all. The trial court did not adopt the view of either litigant in its entirety, but held that the plaintiff could recover under the contract, notwithstanding the death of Miss Gross, but must submit to a deduction equivalent to the expense to which she would have been put if she had been obliged to provide board for the decedent during the whole of the term. The learned judge at circuit also held that the plaintiff could recover interest only from the commencement of the action, and not upon the amount of each of the weekly payments from the time when it became due under the contract. Applying these views of the law to the facts proved, the court directed a verdict for the plaintiff for $499.22, and ordered that the exceptions of both parties-

The cases upon which the defendant bases his argument that the-contract in question here is merely an agreement for board and lodging, and not a lease, are White v. Maynard (supra) and Wilson v. Martin ( 1 Denio, 602 ). In the first of these cases the action was brought for the breach of an oral contract to provide a family of five persons with board and with three specified rooms as lodgings-in a boarding-house, and to light and heat such rooms for a specified period, at the weekly rate of seventy-five dollars. The court held that this was not an agreement for any interest in lands, within the-statute of frauds, and, in the opinion of Mr. Justice Gray, a number of English decisions are cited holding that under statutes relating to-the elective franchise, and under the valuation and tax acts, a mere-lodger in the house of one who retains the. legal possession of the entire premises is not a tenant. But the same learned judge goes, on to say that “ an entire floor of a series of rooms, or even a single-room, may, doubtless, be let for lodgings, so separated from the rest' of the house as to become, in fact and in law, the separate tenement of the lessee,” and this proposition is amply sustained by authority. That it was the purpose of the parties to the contract now under-

The case last cited also bears on the second question presented by this appeal, which is whether the defendant was entitled to offset against the plaintiff’s claim the amount which the plaintiff saved by reason of not having to board the lessee during the whole term of the lease. On this branch of the case the plaintiff insists that the contract entitles her to recover the whole amount specified therein, less what she has already received, inasmuch as she was at .all times prepared and willing to furnish board to two persons up to the end of the term. But the persons thus to be boarded were particularly designated in the agreement, and Harriet Gross, one of them, was expressly named therein. It could not have been within ■the contemplation of the parties that the undertaking - to furnish board would become applicable to some other person in the event •of her death.

In the case of Shallies v. Wilcox (supra), the plaintiff leased certain premises to the defendant at a yearly rent of $300, and further agreed, in consideration of the covenants and agreements contained in the lease, to board the defendant at his house. After a while he refused to allow the defendant to board there, and, in an action on the lease for the stipulated rent, it was held that the defendant had a right of recoupment and counter-claim to the extent of the value •of his board from the time the plaintiff refused to board him. “ When the lessor elected not to board the defendant longer, for whatever cause,” said the court, “ he released, in legal effect, a right

While the learned trial judge was right, therefore, in holding that there might be a deduction on account of the fact that the plaintiff was not obliged to furnish board to the defendant’s testatrix during the whole term, there was a failure to prove the facts necessary to the maintenance of an offset on this ground.

As to the amount of interest which the plaintiff was entitled to recover, I am unable to see why she should not have been allowed interest upon each weekly payment from the time it became due. If the contract had been carried out according to its terms, the plaintiff' would have received seventy-five dollars every week, and from the time she received that amount would have enjoyed its use. This-use, which the defendant has retained to himself, was worth the-legal rate of interest, and it is no hardship to the defendant, and. simply justice to the plaintiff, to compel its payment.

Yan Brunt, P. J., and Brady, J., concurred.

Exceptions of defendant overruled, and the exceptions of the plaintiff sustained and a new trial granted, with costs to plaintiff to ■abide event.