Majority
p. 56Henry V. Ryder, plaintiff, vs. Ephraim H. Jenny, defendant.
Headnote
1. Where the cause of action set forth in the complaint was a breach of a covenant for renewal contained in a lease, and the only relief demanded was judgment for a specified sum as damages; Held that the only cause of action cognizable by the court was that stated in the complaint; and that it was therefore immaterial whether or not the evidence made out a case for specific performance.2. Ownership of a good title, by a lessor, is not a condition precedent to his right of recovery for breach of-a covenant on the part of the lessee to renew. The inability of the former to give a good title is matter of defense, to come from the defendant; who cannot set up such a defense under an allegation in his answer that as to the plaintiff’s “authority to lease,” he has not sufficient knowledge and information to form a belief in relation thereto.
p. 57(Before Robertson and Garvin, JJ.) Heard December 16, 1863; decided February 13, 1864.
3. The negation of a fact, simply because the party has not enough information to have any belief about it, is not equivalent to stating information and consequent belief, that such fact does not exist. Fer Robertson, Ch. J.
4. A lease contained a covenant for renewal at its expiration, for the further term of twenty-one years. At such expiration a lease was tendered by the lessor renewing the original lease for the further term of twenty-one years, at the same rent,” and otherwise upon the same terms, covenants and conditions as “ were in the said original lease contained and expressed,” which also contained a covenant that the lessor had full power and authority to grant said renewal, and a further covenant for the performance by both parties respectively of all the covenants and conditions, &c. contained in the original lease, and that the lessee would pay rent at and after the rate reserved, but in the manner specified in the original lease. Such new lease, however, did not contain a repetition of the covenants for renewal, or for quiet enjoyment, contained in the original lease.
Meld that the insertion of such last mentioned covenants, in the new lease, was not a matter of strict right, to be insisted on by the lessee, before he became liable to an action at law; and that the omission thereof did not prejudice him.
5. In order to get rid of an award made by an umpire, fixing the value of demised premises, under the provisions of the lease, for fraud or misconduct, the party assailing it must either bring an action to set it aside, or ask for that relief affirmatively, in his answer.
6. Where a lease, containing a covenant for renewal, provides for the appraisement of the value of the premises, at the end of the term, and for the payment of a specified per centage upon that valuation as rent under the renewed lease, the lessee is at liberty, until such appraisement is made, to consider himself tenant from year to year at the original rent.
7. If the appraisement is delayed, by the lessor, he is entitled to recover an amount equal to the advanced rent, with interest only from the day the renewed lease was tendered.
Exceptions ordered to be heard in the first instance, ait a general term. The complaint alleged that on the 18th day of J anuary, 1842, the plaintiff, being seised and possessed of a leasehold estate in certain premises situate in the seventh ward of the city of New York, particularly described, he, the plaintiff, by an indenture of lease, bearing date that day, executed and delivered by and between him, the said plaintiff, of the one part, and one Abraham Meserole of the other part, did, in consideration of the sum of $6450, and also, in consideration of the rents, covenants and agreements in the said
p. 58
indenture of lease contained, on the part and behalf of the said Abraham Meserole, demise to the said Abraham Meserole, and the said Abraham Meserole did hire and take of and from the plaintiff, the said lot of land, by the boundaries and dimensions above set forth, for the term of fourteen years, two months and twenty-five days from the 1st day of February, 1842, at the yearly rent of $100, payable in equal quarterly payments, to wit: on the 1st day of May, August, Hovember, and February, in each and every of the said years ; in which said indenture of lease it was, among other covenants and agreements, covenanted and agreed by and between the aforesaid parties thereto, as follows: “ And it is mutually covenanted and agreed by and between the parties hereto that, at the expiration of the term aforesaid, the said party of the first part, his heirs, executors, administrators, or assigns, shall and will grant and execute unto the said party of the second part, his executors, administrators, or assigns, at his or their expense, a renewal of this lease for the further term of twenty-one years thence ensuing, at such annual rent as shall be agreed upon by the said parties, their heirs, executors, adminstrators, or assigns respectively, in quarterly payments; but, in the event of their not agreeing upon such rent, each party shall choose a disinterested person to ascertain the same, which persons so chosen, shall themselves be owners in fee simple of one or more lots of land in the neighborhood of the one hereby demised, and shall, in making their award or determination, under oath, appraise and value the said lot of land hereby demised at its full and fair worth at private sale, considering the same as an unincumbered vacant lot; and four per cent on the amount of their appraisement shall be the annual rent of the said lot of land for such further term ; and in case the arbitrators should differ in the amount of their appraisement or valuation as aforesaid, they shall then chose an umpire, qualified as aforesaid, whose decision, under oath, shall fix and determine the same, and four per cent on the amount of the appraise'ment or valuation so fixed and determined, shall be the annual rent of the said lot of land, for such further term.”
p. 59
The complaint further alleged that before the expiration of the said term, Ephraim H. Jenny, the defendant, had, by sundry mesne assignments, become seised and possessed thereof, and the estate in the said indenture of lease granted, and liable to and subject to and charged with the performance of all the covenants in the said indenture of lease contained on the part of the said Abraham Meserole, as well as entitled to all the benefits of the covenants therein contained on the part of the plaintiff. That, on the expiration of the said term, to wit, on the 25th day of April, 1856, and thenceforward to the commencement of this action, the said defendant, Ephraim H. Jenny, had held over and continued in the possession of the said premises by him thus acquired under and in virtue of the said lease, but had not paid nor proposed nor offered to pay any rent for the'same to the plaintiff, nor, until the 2d of February, 1861, asked a renewal of the said lease, in accordance with the covenants above set forth. That, on the said 2d day of February, 1861, the plaintiff and the said defendant, having been unable to agree as to the amount of rent for such renewal, he, the plaintiff, chose, nominated, and appointed Henry Bansher, of number 41 Montgomery street, in the city of New York, who was in all respects qualified as required by the terms of the said covenant for renewal on his part and behalf in the manner in said covenant for renewal prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and notified the defendant thereof; and on the 4th day of February, 1861, the defendant, on his part, chose, nominated, and appointed John S. Giles, of number 181 Tenth street, in the city of New York, on his part and behalf, in the manner in said covenant for renewal prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and the said Henry Bansher and John S. Giles were afterwards, on the 6th day of February, 1861, severally sworn, each in due form of law, faithfully to discharge the duties of his appointment to the best of his ability. That the said Henry Bansher and John S. Giles thereupon entered upon the duties of their said appointment, but failed to agree, as well
p. 60
on a valuation of the premises under the said covenant, as in the appointment of an umpire, and thereupon wholly ceased to act under their respective appointments as aforesaid-. That afterwards, to wit, on the 18th day of February, 1862, he, the plaintiff, again chose, nominated, and appointed William Miles, of 229 Henry street, in the city of Hew York, who was in all respects qualified as required by the terms of the said covenant for renewal, on his part and behalf, in the manner in said covenant prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and notified the defendant thereof; and on the 11th day of March, 1862, the defendant, on his part, again chose, nominated, and appointed Anson Willis, of number 226 West Twenty-third street, in the city of Hew York, on his part and behalf, in the manner in said covenant for renewal prescribed, to ascertain, appraise, fix, determine, and settle the value of the said premises, and after-wards, on the 10th day of March, 1862, the said William Miles, and on the 11th day of March, 1862, the said Anson Willis, were severally sworn, each in due form of law, faithfully to discharge the duties of his appointment to the best of his ability, and thereupon entered upon the duties of their said appointment, but were unable and failed to agree upon an appraisement or valuation of said lot of land, and thereupon chose and appointed Thomas Webb, of number 38 East Twenty-eighth street, in the city of Hew York, who was in all respects qualified as required by the terms of said covenant for renewal, as umpire, to fix and determine the value of said premises under the said covenant for renewal in manner therein prescribed. And the said Thomas Webb was afterwards, and before entering upon the duties of his said appointment, sworn in due form of law faithfully to discharge the duties of his said appointment to the best of his ability. That the said Thomas Webb did thereupon enter upon the discharge of the duties of his said appointment, and notified as well the plaintiff as the defendant thereof, and having heard the proofs and allegations of as well the said defendant as the said plaintiff, clid, on the 30th day of June, 1862, make, render and deliver
p. 61
Ms appraisement, determination, valuation and award, in writing, wherein and whereby the said Thomas Webb did fix and determine the value of the said lot of land, considering the same as an unincumbered vacant lot and for the objects and purposes in said covenant for renewal specified, at the sum of three thousand five hundred dollars, of which said award the defendant, J enny, was on the same day notified by service of a copy thereof. That afterwards,, and on the 21st day of July, 1862, he, the plaintiff, did execute under his hand and seal, and cause to be left with the said Ephraim H. Jenny, to he executed on his, said Jenny’s, part and to be offered and tendered to the said Ephraim H. J enny on the condition that fie, the said Jenny, would in like manner execute the same fop delivery in due form of law, by and between the plaintiff and the defendant, an indenture of renewal to the said Ephraim H. Jenny of the said lease between the plaintiff and Abraham Meserole for the term of twenty-one years, from the 26th day of April, 1856, at the yearly rent of one hundred and forty dollars, being four per. cent on the said valuation and appraisement of the premises by Thomas Webb as aforesaid, payable in equal quarter yearly payments, on the first days of February, May, August, and November in each year, and otherwise upon the same terms, covenants and conditions as qre in the said original indenture of lease contained and expressed. A copy of this lease was set forth in the complaint. It recited the execution of the original lease, and the covenants therein; and that the defendant was then the owner of the said indenture of lease, and as such owner was entitled to the renewal thereof; and that the rent of the said demised premises for the second term of twenty-one years had been fixed, in the manner prescribed by said indenture, at the sum of one hundred and forty dollars. It then witnessed that the said party of the first part, in consideration of the premises, and the sum of one dollar to him in hand paid, the receipt whereof was thereby acknowledged, had renewed and did thereby renew the original lease, and grant, demise and to farm let unto the said party of the second part, the premises in question, being those
p. 62
described in the original lease, for the term of twenty-one years from the 26th day of April, 1856, yielding and paying therefor to the lessor, the yearly rent of $140, payable quarterly, “ and otherwise upon the same terms, covenants and conditions, as are in the said original indenture of lease contained and expressed ; provided, however, that if it should hereafter appear that the said party of the second part be not the lawful owner of said lease and legally and equitably entitled to claim the renewal thereof, this indenture and the estate hereby granted shall be void.
“ And the said Henry V. Ryder, hereby covenants that he has full power and lawful authority to grant this renewal.
“ And the said parties of the first and second parts hereto do each with the other mutually grant, covenant, promise and agree that they, or their legal representatives, will respectively well and truly keep, perform, abide by, and fulfill all and every of the covenants, conditions, restriction^ and provisions in the said original indenture of lease contained, by the lessors and lessees therein named to be kept, performed, fulfilled and observed, and the said party of the second part, his executors, administrators or assigns shall and will pay rent for the demised premises at and after the rate hereinbefore reserved, but in the manner specified in said original indenture of lease.”
The complaint then alleged that the defendant had hitherto wholly neglected and refused to execute and deliver the’said indenture of renewal of lease, or to propose or offer to execute and deliver betweeh him, the said defendant, and the plaintiff, any renewal of the said original lease between the plaintiff and Meserole. And the plaintiff claimed that, by reason of the use and occupation of the premises by the defendant, since the said 25th day of April, 1856, to the commencement of this action, and the matters and things before alleged, the plaintiff was lawfully entitled to have, of and from the defendant, the sum of $840, with interest from the first day of August, 1856, and alleged the neglect and refusal of the defendant to pay the same. Demand of judgment for that sum, with interest and costs,
p. 63
The answer of the defendant admitted that the plaintiff, on the 18th day of February, 1842, was possessed of a leasehold estate in the lots of land on East Broadway, as mentioned in the complaint, for the term of twenty-one years only, thence next ensuing, from the 1st day of May, 1834 ; but as to the plaintiff, at the commencement of this action, having, and still retaining his said leasehold estate in said premises ; and as to the plaintiff having any right, title, and interest in said premises, whereby he has the power to lease the same to the defendant for twenty-one years, from the 26th day of April, 1856 ; and as to the plaintiff’s having any right and interest in said lots, whereby he is entitled to ask and have, of and from the defendant, $140, or any other sum, per annum, for the use of said premises, since May 1st, 1856, the defendant hath not knowledge or information sufficient to form a belief, and therefore denies the same. He admits that he has occupied, and still does occupy the premises, since the expiration of his term mentioned in the complaint, without any new contract or agreement with the plaintiff, or any other person ; and has, at any and all times, been ready and willing, and anxious to pay the rent of said premises to the plaintiff, or any other person having the right to receive the same, at the same price and rate which he paid to the plaintiff during the pendency of his-lease, and previous to the expiration of the same, to wit, the sum of $100 per annum—that being the amount of the yearly rent of said premises during the pendency of said lease, and all the use of said premises were, and still are worth per year. He alleged that he has offered to the plaintiff the aforesaid sum of $100, annually, for the use of said premises, and requested the plaintiff to take said amount, yearly, but tkeplaintiff refused, and still does refuse to accept said amount, although the defendant has held over, and continued in, possession of said premises, without any new contract or agreement having been entered into between the parties, to- this action.. He denies that the plaintiff is entitled to recover of him the sum of $140 dollars per year, for the use and occupation of the. premises aforesaid; and he denies that- the pretended award,
p. 64
of the said Thomas Webb, in the complaint mentioned, should be obligatory upon him, because upon the trial, or hearing before the said Webb, he, the defendant, produced in evidence several witnesses, who were well and duly qualified to speak as to the value of the lots in the complaint mentioned, and that none of the witnesses so produced, valued the lots more than $2500, but some of them less; that the plaintiff did not, upon said hearing, nor at any other time, produce any witnesses, or give any evidence whatever in relation to the value of said lots ; and if the said Webb did make any decision or award on the hearing, the same was made without any evidence other than above set forth ; and in assessing the value of the said lots at $3500, the said umpire acted without authority, in any respect whatever ¡ and that the said award is void, and of no effect, the said Webb, the umpire, in a partial manner, and without any evidence before him, assessing the value of said lots at $3500. And the defendant alleged that no award, appraisement, determination or valuation of the lots aforesaid, by the said Thomas Webb, had been served upon, or left with him, nor was the lease mentioned in the complaint, which bears date the 26th day of April, 1856, and which' the plaintiff ¡alleges was left with the defendant for execution, with the conditions therein contained, in accordace with the covenants and conditions of the lease, which was made by and between .John Beekman and Mary E.' Gr. Beekman, his wife, of the one part, and Leonard K. Smith, of. the other part, and which lease was afterwards duly assigned to the plaintiff' hy the said Leonard K. Smith, and which lease should have contained the same covenants as the Smith lease ; therefore, he, the defendant was not bound to accept said lease, or execute a lease with an agreement to pay $140 dollars, and omitting the covenants which should have been inserted. And this defendant denied that there was any thing due the plaintiff, the said lots not having been dply appraised or valued, so that it could be ascertained what amount should be paid by the defendant, as by the covenants in the lease from the plaintiff to Abraham Mes-prole, tlie defendant's assignor, is required to be ascertained;
p. 65
wherefore the defendant prayed judgment that the plaintiff’s complaint he dismissed, with costs.
On the trial before Justice Robertson and a jury, in January, 1863, the plaintiff, after reading the pleadings to the jury, rested his cause ; whereupon the counsel for the defend-, ant moved to dismiss the complaint, on the ground that, by the pleadings, the defendant was entitled to judgment. The motion was denied by the said justice, and the counsel for the defendant excepted.
At the close of the testimony, the defendant’s counsel moved to dismiss the complaint, on the ground that the plaintiff failed to prove title. Motion denied. Exception by the defendant. The defendant’s counsel asked the court to charge :
“ 1. That no relation of landlord and tenant is now existing between the parties, whatever.
2. That this is not a covenant running with the land.
3. That the plaintiff has showed no title or right to demand either rent, or for use and occupátion.
4. That if the plaintiff be entitled to any thing, it is only from the time when he- states he tendered the renewal lease.”
The court decided all the questions at law against the defendant, and directed a verdict for the plaintiff for §1031.30, of which §191.30 was for interest.
J. S. Bosworth, for the defendant.
C. Jones, for the plaintiff.
By the Court,
This court has recently, in an action brought to recover on a contract for the sale of land, held that the relief demanded in the summons and complaint determines the character of the action, so that a prayer for damages exclusively, prevents a judgment for specific performance, notwithstanding the complaint contains facts sufficient to warrant it. (Fowle v. Jones, 1 Rob. 84 .) As the relief demanded in the complaint in this action is for a sum of money only, it becomes immaterial whether a case for spe
p. 66
cine performance is made out or not. The sole cause of action, cognizable by us, is, therefore, a breach of the covenant of renewal contained in the original lease from the plaintiff to the defendant.
One objection taken at the trial, was that the defendant was not bound to take, although the plaintiff was, to give a lease. If it were a question of election on the part of the former, his appointments of appraisers, and remaining in possession of the premises, would be evidence of his agreeing to accept a properly renewed lease. But the original' covenant is expressly declared to be mutual, and the language of the whole of it implies a reciprocal obligation. Such objection was, therefore, properly overruled.
Another objection to the plaintiff’s right of recovery was that he had no title to the premises. It is to be remembered, however, that although this is merely an action at law, the defendant has not set up such want of title as a defense, and the plaintiff might disregard his own allegation of power and title to lease as not essential to his case. The denial in the answer of the plaintiff’s authority to lease, is qualified, being that the defendant has not sufficient knowledge and information sufficient to form a belief in relation thereto. The Code requires that every allegation in a pleading should be positive or on information and belief. The negation of a fact, simply because a party has not enough information to have any belief about it, is not equivalent to stating information and consequent belief that such fact does not exist, This question is important in regard to the burden of proof; if the_ defendant contends that the consideration of his contract has failed by the inability of the plaintiff to give a good title, he is bound to establish it. Possession of a good title by the vendor, may be matter of implied warranty on his part, (Sugd. on Vend. ch. 1, § 3, art. 17 ; Burwell v. Jackson, 9 N. Y. Rep. 535 ,) but it is not a condition precedent to his right of recovery, but matter of defense to come from the defendant. The latter, therefore, had no right, under the pleadings, to endeavor to establish such a defense.
p. 67
But even if the defendant had the right to set up a want of authority on the part of the plaintiff to lease, or a defect in his title, the evidence made out a prima facie title in him, which the defendant offered no evidence to rebut. The latter, besides testifying that the Beekmans were “ the oioners ” of the- property originally, obtained possession of the premises under a lease from Mr. and Mrs. Beekman, claiming to own the lands in fee which had been assigned to the plaintiff, The legal title to the premises in fee was traced down from such lessors to another Mr. Beekman and a Mr. Cox, described as trustees for a Mrs. De Peyster. Mr. Cox subsequently conveyed all his interest to his co-trustee, pursuant to an order of the Supreme Court, which directed him to do so, discharged him from his trust, and declared his co-trustee, upon such conveyance, to be sole trustee. Such order was made on a report of a referee, to whom a petition of Mr. Cox to such court to be discharged as such trustee had been referred, to take proof of the facts stated in such petition. The petition itself was not produced, but an entry of its filing in the books of the clerk of the Supreme Court was proved, and also a diligent but ineffectual search for it in that office. The attendance of Mr. Cox, personally, before such a referee, on such reference, was also established. The petition was recited in the final order of the Supreme Court. There was, therefore, sufficient prima facie evidence of the existence of such petition, and its presentation. Consequently, there was no outstanding interest, either legal or equitable, in Mr. Cox. If the trusts obstructed the right to grant a lease, the defendant was bound to establish it; there was no evidence that they did, and prima facie legal ownership establishes a right to lease. The defendant’s objection to the title was, therefore, untenable, under the evidence.
An objection of some difficulty arises to the plaintiff’s right of recovery, growing out of the character of the léase tendered. This does not contain a repetition of the second covenant for renewal contained in the first lease, which was conditional, or of the covenant for quiet enjoyment. The
p. 68
plaintiff only undertook to renew the lease, that is, to give a new demise for a term of years. The terms of such agreements have never been stretched beyond their legitimate meaning. On the contrary, they have only been required at law to be literally complied with ; thus an agreement to convey in fee is satisfied by a deed without any covenants. (Van Eps v. Mayor, &c. of Schenectady, 12 John. 436 . Fuller v. Hubbard, 6 Cowen, 13.) The original covenant to renew a second time on a contingency is a perfectly valid and binding contract, capable of being enforced when the contingency occurs. There is no obligation on the plaintiff to execute a similar new contract, when he is performing another covenant, merely because it is in the same instrument. It has no relation to the new term of years given, does not protect or affect it or the enjoyment of the land, and is not incidental to it. It binds the land into whosever hands it falls, (Piggot v. Mason, 1 Paige, 412,) as does that to pay for improvements, where, as in this .case, assignees are included. (Lametti v. Anderson, 6 Cowen, 302.) The omission of such covenant in the new lease does not, therefore, prejudice the lessee. Its insertion may make the statute of limitations begin to run from the new lease, instead of the happening of the contingency, but there is no principle which would render it obligatory on the lessor to give the lessee that advantage, merely because the two covenants are in the same instrument. Even in cases of covenants in a lease for perpetual renewals, the point does not seem to have been adjudicated that every renewed lease should contain a similar covenant, unless .the first lease contained a provision to that effect; and even where it did, it has beep held that trustees were not bound to insert it in a lease by them. (Hodges v. Blagrove, 18 Beav, 104.) In the case of Bridges v. Hitchcock, (cited in Iggulden v. May, 7 East, 237,) referred to on the argument, the covenant was for “ such further'lease as the lessee might desire ; ” and in Furnival v. Crew, (3 Atk. 83,) also so referred to, the terms were to “ grant a new lease, and so continue renewing them.” Although the cases of Rutgers v. Hunter, (6 John. Ch. 215,) and
p. 69
Phyfe v. Wardell, (5 Paige, 288,) do not expressly decide this point, they seem to consider that a covenant for perpetual renewal, at least, is necessary to require the repetition of a covenant for renewal. The danger of a loss of the first instrument, or of evidence in the course of time, might, in case a lease was to continue forever, render a repetition of the covenant in such instrument necessary, when it would not he where there was to he but one renewal. The insertion of either a covenant for renewal, or for quiet enjoyment in the lease to be tendered by the plaintiff, was not a matter of strict right to be exacted on the part of the defendant before he could be sued at law. Possibly, in an equitable action for . specific performance, the defendant might have a right to be protected against any risk arising from loss of instruments, or otherwise, by a repetition of a covenant for renewal; aU though the plaintiff had not in ter-ms bound himself to insert such a covenant in his new lease ; but there seems to be' no reason for it in an action at law.
On the trial, testimony offered by the defendant to show by the opinions of witnesses that the lot in question was worth less than the sum at which it .was appraised, as well as the grounds of the decision of the umpire, was excluded. The only grounds of objection taken to such award in the answer, are : First. That the witnesses produced before the umpire by the defendant testified that the lot in. question was not worth more than twenty-five hundred dollars, while the plaintiff did not produce any witnesses, and no other testimony was taken by such umpire. Secondly. That no award of the umpire was ever served on the defendant. The last objection was overcome by proof to the contrary. It was also proved that it was agreed by the parties that the umpire should use the testimony taken before the appraisers, besides additional testimony, and that after the evidence had been closed, further testimony had been taken by agreement. In order to assail such award for fraud or misconduct, the defendant should have either commenced an action to set it aside, or, upon suitable allegations, have asked for the same relief affirmatively
p. 70
in Ms answer. (Owen v. Boerum, 23 Barb. 187 .) It is true it has been held in this court that a valuation by an umpire of land, to be appraised as an unincumbered lot, when he took the value of an incumbered lot as his guide, was an excess of authority, (Borrow v. Milbank, 5 Abb. Pr. 28 ,) and therefore void, even at law. But no such ground is taken in the answer in this case. Even if an arbitrator were precluded from using his own knowledge, or relying on his own judgment, there was no proof offered that the only testimony presented to the umpire stated a less value than he fixed, but merely that the lot was worth less, which cannot be used to set aside an award. (Underhill v. Van Cortlandt, 2 John. Ch. 339.)
The condition precedent to the performance of the defendant’s covenant having thus been determined, and a proper lease tendered, the only remaining question is as to damages. Keither party seems to have proposed a renewal until February, 1861; when the first submission was executed. Until that time the plaintiff could have ejected the defendant as holding over after his term had ended. Until the amount of rent was determined, and a lease tendered, the defendant could only be liable in an action for use and occupation, and the measure of the plaintiff’s right of recovery would have been the amount of rent previously paid. The testimony shows that the plaintiff refused to receive rent at that rate every year ; and yet there is no evidence of any attempt on his part to put the defendant in default by proposing to have the value of the lot appraised, until February, 1861. The first appraisement having fallen through, no new steps were taken until February, 1862, and the defendant remained at liberty to consider himself tenant from year to year, and at the same rent. He certainly was not bound to anticipate the appraisement, and tender, by conjecture, the possible amount of rent to be afterwards fixed. I think the plaintiff estopped from claiming interest on the larger rent by not having it determined, or putting the defendant in default, and on the former rate, by his refusal to receive the rent when offered. The lease was not
p. 71
tendered, until July, 1862, and the increased rent only became payable at that time. Of course, the defendant having joined in the submission, was bound to have executed the lease when tendered ; if he had done so, he would have been liable for the increased rent from the time when it commenced ; not having executed it, he is liable for the loss sustained by the plaintiff thereby. If he had put his -refusal to execute upon the ground that his acceptance of it would make him liable for interest on each quarter’s rent, from the time it became due, possibly he might have been justified, unless the plaintiff agreed to'waive all claim to such interest. As it stands, the plaintiff is entitled to recover an amount equal to the advanced rent, with interest only from the 21st of July, 1862 ; and he must consent to make the necessary deduction, or there must be a new trial, with costs to abide the event.
If the plaintiff consents to make the proper deduction of interest, the exceptions of the defendant must be overruled, the motion for a new trial denied, and judgment given for the plaintiff for the amount so modified, without cost on the appeal to either party.
Cases cited
- Owen v. Boerum 23 Barb. 187 p. 70
- Borrowe v. Milbank 5 Abb. Pr. 28 p. 70