Hyperlawhypertext legal database Giles v. Austin 34 N.Y. Super. Ct. 171

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Giles v. Austin

34 N.Y. Super. Ct. 171 2 Jones & S. 171 Court N.Y. Super. Ct. Decision date 1871-12-31 English

Decision Majority — Barbour, Ch. J. · Concurring — *189 Jones, J.

Contents

Majority

p. 171
GILBERT GILES, Plaintiff and Respondent, v. WILLIAM AUSTIN, Defendant and Appellant.

Headnote

H. Forfeiture, Belief against, in-Equity.—Lease.
1. When eguity will not relieve.
1. Where there has been gross and inexcusable neglect.
a. Application of principle.
When a lessee, who has covenanted to pay taxes and assessments, leaves seven years’ taxes (ending with the tax for 1867) unpaid, suffers a part of the premises to be sold for the first two years’ taxes, neglects to pay the taxes then due when notified in the seventh year to pay the same, and informed that the lessor is unable to procure a loan by reason of their outstanding, puts in an answer to an ejectment suit (commenced December 10, 1867), about four months after the commencement of the suit, alleging, among other things, the payment of the first two years’ taxes, and of divers other taxes and assessments, but falsely denying that any taxes remained unpaid, does not redeem the portion sold until January 14, 1868, nor pay the fourth year’s tax until February 14, 1868, nor the fifth year’s until October 27, 1868, nor the sixth and seventh years’ until July 80, 1868, and then on October 12, 1868 (before the payment of the fifth year’s taxes), notifies the lessor that he has paid all taxes and assessments payable up to date, asks for a waiver of. any technical forfeiture, offers to pay all rent due and interest thereon, and costs of ejectment suit, both plaintiff’s and defendant’s, and on the same day commences an action in equity to procure relief from the forfeiture of the lease on the terms mentioned in his offer, and a perpetual injunction against the prosecution of the ejectment action.
Held, that he was not entitled tó any relief in equity, the only excuse offered by him for his neglect and action being that he was advised by his then attorney that he need not be in a hurry to pay the taxes so long as his lessor allowed an assessment, which was on the premises
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at the time of the execution of the lease, to remain unpaid ; that he never thought he was injuring anybody but himself by the taxes being in arrears, and had no intention of injuring the lessor by his delay.
Lease containing covenants for payment by lessee of lasses and assessments, and a clause of re-entry for default inpayment.
Questions Aeisens Undeb—
1. Oan equity relieve from a forfeiture caused by non-payment of taxes and assessments ?
3. If it can, will an action in equity lie inf mor of the lessee after an action of ejectment based on such forfeiture has been commenced by the lessor ?
Both these questions discussed ably by the counsel, and the latter one discussed by one of the judges, but neither decided.
Before Barbour, Ch. J., Monell and Jones, JJ.
Decided December 31, 1871.
This is an appeal by the defendant from a judgment entered upon the report of a referee. The case is as follows:
In April, 1859, a lease was executed by and between the defendant and the plaintiff, whereby the former demised and let to the latter certain lots of land, with the buildings thereon, in this city, for the' term of twenty-one years, from May 1, 1859, at an annual rent of two thousand eight hundred dollars, payable quarterly, which the lessee covenanted and agreed to pay, as well as all taxes and assessments, as the same should become due and payable ; and the lease further provided that if default should be made by the lessee in any of the covenants to be by him performed, then it should be lawful for the lessor to re-enter, &.c.
In December, 1867, the lessor brought an action of ejectment against the lessee and three other persons, who were tenants under him, to recover possession of the premises, setting forth, in his complaint, the lease, with its covenants and conditions, and alleging that the lessee had neglected and refused to pay the taxes
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for several successive years, and still refused and neglected to pay the, same, and that he had even suffered the premises to be sold for non-payment of some of the taxes which he had so covenanted and promised to pay as the same should become due and payable, and had not redeemed them from such sale; and the plaintiff claimed, thereupon, the possession of the premises. The defendant .put in an answer to the complaint in March,- 1868, and the cause was-thereupon noticed for trial by the plaintiff. The answer in that action admitted the making of the lease, and, in effect, the fact that the premises had been sold for taxes; but it alleged that the plaintiff was fully informed of such sale, and notwithstanding such knowledge, thereafter, several times,'received the rent of the premises from the lessee. The answer further alleged that the plaintiff had failed to pay certain assessments upon the property which had been made and confirmed before the date of the lease,.and which the lessor had covenanted to pay; it also denied all other averments contained in the complaint, , and prayed that the complaint be dismissed, with costs.
On October 12, 1868 (about two months after the commencement of the action in ejectment), the lessee served on the lessor a notice that he had paid all the taxes and assessments on the property, and offered to pay him all rent in arrear, with interest, together with the costs of all the parties in the ejectment suit; and, on the same day, the lessee commenced this action, and obtained therein an injunction restraining the lessor from prosecuting his action of ejectment, until the determination- of this suit.
In his complaint in this action the plaintiff sets out the lease, with its covenants, &c., and states the institution of and proceedings in the ejectment suit, and admits that some taxes and assessments remained unpaid when that action was commenced, but alleges
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that he always designed to pay them and had, in fact, paid them before the commencement of his suit, sets forth his offer to pay rent, costs, &c., and demands that upon his paying or tendering payment of such costs, rent, &c., he be relieved from the forfeiture, and that the defendant be perpetually enjoined against further prosecuting his action in ejectment. The answer was served about October 27, 1868, and on June 12, the action was referred to a referee to hear and determine.
•Upon the trial it appeared that when the action of ejectment was commenced, the following taxes and assessments were outstanding and unpaid:—
For an assessment in 1859............... $40 00
“ “ “ 1857............... 221 00
For taxes of . 1861............... 70 06
“ “ 1862............... 60 70
“ “ 1864............... 75 00
“ “ 1865............... 104 65
“ “ 1806............... 874 00
“ “ 1867................ 1,201 50
$2,646 91
besides interest thereon, at the rate of twelve per cent, per annum; of which amount two thousand three hundred and fifty dollars and ninety-one cents besides interest, remained unpaid when the answer in the ejectment suit was served, and that one hundred and four dollars and sixty-five cents remained unpaid at the time this suit was commenced. It' also appeared that a portion of the premises was sold in 1866, for the taxes of 1861 and 1862, for two hundred and six dollars and twenty-one cents, but that it was redeemed by the lessee from such tax sale after the ejectment suit was commenced, and before issue joined; and that all the taxes and assessments were paid before the trial of this action. The assessment of1859 was paid February
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14, 1868, and that of 1867 was paid October 10, 1868. The taxes of 1861, 1863 and 1863, were paid October, 1864, except the tax on a rear lot; those of 1864 on February 14,1868 ; those of 1865 on .October 37,1868 ; those of 1866 and 1867 on July 30, 1868; the tax on the rear lot above mentioned for 1863, was paid November, 1867, that lot was sold for the taxes of 1861 and 1863, but was redeemed and the tax paid June 14, 1868. It was also shown that the plaintiffs written offer, to pay costs, &c., and request to be permitted to redeem the term from the forfeiture, was served on October 13, 1868, being the day on which the summons in this action was served, and more than nine mouths after the commencement of the action in ejectment. The defendant also proved upon the trial that he gave the lessee notice that the taxes and assessments were unpaid and requested him to pay the same, before the ejectment suit was instituted, and at the same time told him that his failure to pay them prevented the lessor’s obtaining a loan of twenty thousand dollars upon the property, and that unless they were paid, the latter would bring an action of ejectment against him.
On the trial of this action plaintiff testified that he was advised by a lawyer not to be in a hurry to pay his taxes and assessments so long as the lessor let so much be in arrear; that he never thought he was injuring anybody but himself by the taxes being in arrear ; and that he had no intention of injuring the lessor byt his delay in making payment.
Upon the opening of the case for trial the defendant’s counsel moved to dismiss the complaint upon the ground : first, that the cause of action, if any existed, was available as an equitable defense to the ejectment suit, and must be set wp by answer in that suit; and, second, that an action for an injunction cannot now be maintained to stay the prosecution of another ac
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tion in the same court;—which motion was denied, and the counsel for the defendant duly excepted.
On the submission of the cause upon the pleadings and 'proofs, as above, the referee held, as matter of law) that the covenant in the lease for the payment of taxes and assessments was only a covenant for the payment of money, arid that the lessée ought to be relieved from the lessor’s right' of forfeiture which had attached. because of the failure of the foriher to make such payments at the several times required by the lease ; and he thereupon decided that the plaintiff was entitled to a judgment perpetually enjoining and restraining the defendant from further prosecuting his action of ejectment, upon the plaintiff’s paying, or tendering to the defendant all the costs of the action in ejectment and of this suit, with all the back rents and the interest thereon, wiMin thirty days after the notice to him from the lessor of the judgment in this action, and of a time and place whe/fe the Tatter would be in attendance to receive the same; or at such time as the plaintiff should elect, if he should not choose to wait for such notice; and the judgment appealed from was thereupon entered, in accordance with such decision.
Thoma s B. Browning, of counsel for appellant, urged:
I. This action' cannot be maintained. The referee should' have granted the motion to dismiss the complaint. The matters alleged in the complaint are only available as an equitable defense to the ejectment suit. (1.) The' defendant may set forth by answer as many defenses . . ." as he may have, whether they be such as have heretofore been denominated legal or equitable, or both (üode, § 150). (2.) The word may méans must, (a.) Dobson v. Pearce, 12 N. Y. 156 ; Crary v. Goodman, Id. 266 ; Foot v. Sprague, 12 How. Pr. 355 ; Auburn City Bank v. Leonard, Leonard v. Auburn City Bank, 20 Id. 193; Arndt v. Williams,
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16 Id. 214; Bowers v. Talmadge, 16 Id. 325 ; Grant v. Quick, 5 Sandf. 612 ). The case of Haire v. Baker, 1 Seld. 351, was sustained only on the ground that the plaintiff demanded affimative relief ; the case being decided in 1851, and the amendment giving affirmative relief to a defendant being made in 1852. Siemon v. Schurck, 29 N. Y. 598 , was sustained because the relief demanded required the presence of new parties. (b.) The judgment or decree of a court of competent jurisdiction is not only final as to the matter actually determined, but as to every other matter which the parties neglect to litigate in the canse, and which they might have had decided (Bruen v. Hone, 2 Barb. 586 ; Southgate v. Montgomery, 1 Paige, 41; Canfield Monger, 12 Johns. 347 ; Hays v. Reese, 34 Barb. 351 ; Harris v. Harris, 36 Id. 88 ; Leonard v. Auburn City Bank, ante. It is conclusive upon every question involved in the plaintiff’s right to recover. Davis v. Tallcot, 12 N. Y. 1846 ; Ballinger v. Craige, 31 Barb. 534 ). “ The question in an action is not whether the plaintiff has a legal right or an equitable right, or the defendant a legal or equitable defense against the plaintiff’s claim ; but whether, according to the whole law of the land applicable to the case, the plaintiff makes out the right which he seeks to establish, or the defendant shows that the plaintiff ought not to have the relief sought for” (Crary v. Goodman, ante). If judgment had been rendered in the ejectment suit, that judgment must have affirmed that there were no equitable eircum - stances entitling the plaintiff in this action to relief. It would therefore have been a bar to this action, (c.) Before the Code the rule was that no relief in equity could be had against proceedings at law where a party had been guilty of laches in not making a legal defense, or where the defense was not available by reason of his own neglect (Smith v. Lowry, 1 Johns. Ch. 320 ; Penny v. Martin, 4 Id. 566; Murray v. Graham, 6 Paige, 622;
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Vilas v. Jones, 1 Comst. 281-282). Legal and equitable defenses being now equally available, it follows that unless some reason exists other than the plaintiff’s neglect; why he did not set up the matters in his answer to the ejectment suit, then this action cannot be maintained. (d.) Cess-ante ratione legis, eessat et ipsa lex. The only ground upon which courts of equity formerly allowed an injunction to restrain proceedings at law, was the inability of courts of law to grant relief (Grant v. Quick, 5 Sandf. 613 ; Dederick v. Hoysradt, 4 How. Pr. 352 ). (e.) The law discourages a multiplicity of actions. (/.) Garner v. Hannah, 6 Duer, 262 , is the only case opposed to these principles. The parts of the opinion holding that relief can be given as well after as before judgment, and a second action to obtain relief, will lie, are only dicta. The case cannot be maintained. (3.) If the matters alleged in the' complaint afford any ground for relief, then they constitute an equitable defense. An equitable defense" is any' matter which before the Code could have authorized an application to the court of chancery for relief against a liability (Dobson v. Pearce, 12 N. Y. 168 ; Leonard v. Auburn City Bank, 20 How. Pr. 195 ; Traphagen v. Traphagen, 40 Barb. 538 ; Hunt v. Farmers’ Loan & Trust Co., 8 How. Pr. 418 ). (4.) The parties to both actions are the same. The word “parties” includes “ privies ” (Goddard v. Benson, 15 Abb. Pr. 191 ). (5.) The plaintiff asks for no affirmative relief—only an • injunction, which answers the same purpose as a defense at law. (6.) The plaintiff can have all the relief he desires in the ejectment suit; this action therefore cannot be maintained.
II. The plaintiff is entitled to no relief in equity. The rule is that equity will not relieve against a forfeiture incurred by a breach of covenant, other than a covenant for the payment of money (some authorities restrict relief to covenants for the uayment of rent),
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where the breach is willful or where precise compensation cannot be made. But where the stipulation is intended as a mere security for the payment of money the court will relieve (De Scarlett e. Denett, 9 Mod. 22 ; Eaton v. Lyon, 3 Ves. 692; Hill v. Barclay, 18 Id. 55; Rolfe v. Harris, 2 Price, 210, note ; Reynolds v. Pitt, Id. 22; Bracebridge v. Buckley, Id. 210; White v. Warner, 2 Merivale, 459; Livingston v. Tompkins, 3 Johns. Ch, 431 ; Baxter v. Lansing, 7 Paige, 352 ; Green v. Bridges, 4 Sim. 96 ; Gregory v. Wilson, 9 Hare, 689 ; Wadman v. Calcraft, 10 Ves..66; Hancock v. Carlton, 72 Mass. 58 ; Roberts v. Geis, 2 Daly, 540 . (Garner v. Hannah, 6 Duer, 273 , states the principle, but misapplies it. The earlier cases, followed by Sanders v. Pope (12 Ves. 282), and Davis v. West (Id. 474), held, that relief would be given in all cases if compensation could be made; but these have been overruled (See Bracebridge v. Buckley, and Hill v. Barclay, ante). In Rolfe v. Harris, ante, it is said that the decision in Sanders v. Pope is founded rather on dicta than authories, and goes farther than the authorities warrant. But there is no case in which relief has been given, unless there could be complete compensation. (1.) A covenant to pay taxes, &c., is not a covenant to pay money within the meaning of the authorities : it is a covenant for the preservation of the inheritance, (a.) A covenant to pay money is one in which money is the thing to be received and enjoyed by the covenantee, and in which the only effect of its breach is the inconvenience to the covenantee in not receiving the money at the proper time ; which inconvenience is regarded as fully compensated by the payment of interest. The reason, too, why equity relieves in such cases, is that the right of re-entry is only a security for the payment. But where money is used only as an instrument for the accomplishment of some ulterior purpose—as a means to an end—and the injury
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resulting from its breach is not limited to interest, there the covenant is not for the payment of money. This is sustained by all the authorities. (5.) A covenant to pay taxes is one in which money is used only as an instrument to procure their discharge, and to preserve the inheritance from a sale for their non-payment. The injury to the landlord arising from its breach is not limited to interest; he does not receive either principal or interest. The only advantáge derived by him from the performance of the covenant, is the protection of his property. It is like a covenant to lay out money in repairs, or a covenant to insure. In both of these, money is used only as an instrument, (c.) But in covenants for the payment of money, the right of re-entry is a security for its payment. ' But where the breach attacks and will eventually destroy the security, the covenant is surely not one to pay money within the meaning of the rule. (2.) The plaintiff’s breach of covenant has been willful. Willfulness does not consist in the intention to do wrong. Hor does an honest belief that one is doing right excuse the act (People v. Brooks, 1 Den. 459 ). Willfulness is the absence of inevitable accident, whether the party be asleep or awake. Unintentional neglect is willfulness (Elliott v. Turner, 13 Sims. 477 ; Eaton v. Lyon, 3 Ves. 692 ; Rolfe v. Harris, 2 Price, 210; Gregory v. Wilson, 9 Hare, 689). The advice of counsel is- no excuse (Hunt v. Rousmaniere, 8 Wheat. 174 ; McDaniel v. Bank of Rutland, 29 Vt. 230 .) The plaintiffs only excuse for the breaches, is his own negligence; for his persistent neglect to perform his covenants, his own determination and the advice of Simms after the commencement of the ejectment suit. (3.) There can be no complete compensatirn for the breach of covenant to pay taxes. It is the landlord who is injured, and to him compensation must be made. What is the
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measure oí damage ? (a.) Interest is not the rule because the principal is not payable to landlord, and interest follows the principal. (5.) But there must be some compensation in damages, and some rule by which the damages are to be measured, or equity will refuse relief. “This court never relieves but in such cases where it can give some compensation in damages, and where there is some rule to be the measure of damages to avoid being arbitrary” (Wafer v. Mocato, 9 Mod. 112.) In Peachy v. Duke of Somerset, 1 Strange, 447; Rolfe v. Harris, Id. 210, the rule is similarly stated, (e.) It makes no difference that the court cannot see that there has- been any substantial loss in money, or believes that there has been none. Equity can only interfere where it can determine the precise injury, and can give precise compensation for it by the payment of money (Elliott v. Turner, 13 Sims. 483 ; Bracebridge v. Buckley, ante; Atkyns v. Kinnier, 4 Excheg. 776). In covenants to insure, there can be no loss if there is no fire, nor in convenant not to assign can there be a loss, for the landlord has a double security, but in such cases equity always refuses relief, (d.) But it has been shown that a covenant to pay taxes is a covenant for .the preservation of the inheritance, that its breach tends to the prejudice of the inheritance, and will ripen into right—a lease of the premises for a long term of years—and it is well settled that in all such cases the damages cannot be estimated, for there is no rale by which the damages can be measured (Rolfe v. Harris, Reynolds v. Pitt, Hill v. Barclay, Bracebridge v. Buckley, Green v. Bridges, Gregory v. Wilson, De Scarlett v. Denett, Wafer v. Mocato). The defendant has suffered the risk of the loss of his property, as well as the interest on twenty thousand dollars, which is only a portion of the.injury. The time in which to redeem from the sale of 1866 had. nearly expired. The covenant to pay taxes is stronger than
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any of the other covenants for the preservation of inheritance, for its breach may occasion the loss not only of the buildings, but of the land itself. Money cannot be given as a compensation for the breach, for there is no rule by which the amount can be determined. The court cannot give anything but money; there can, therefore, be no compensation, and consequently no relief.
III. The danger of relief. To relieve in case of a breach of covenant of this kind, is to surrender the landlord to the mercy of his tenant. The security which the parties have fixed for the performance of the covenant is first destroyed, and then after the landlord has lost his property, for the destruction of the security involves the loss of the property, he is turned over for damages to perhaps an insolvent tenant.
Evarts, Southmayd & Choate, attorneys, and Joseph H. Choate, of counsel for respondent, urged:—
I. The jurisdiction in equity to relieve from penalties and forfeitures which are inserted merely as security for the payment of money, so that what the law regards as full compensation may be made by the payment of money and interest, is well established, and the right of the tenant to relief from the forfeiture on payment of the money and interest has long been settled (3 Story Eq. Jur. § 1314, and cases cited). Eelief from forfeitures for non-payment of rent are of every day occurrence in England and America, and the only reason why relief in the case of forfeiture for non-payment of taxes and assessments has not been so frequent, is because the covenant has not been so common. This court, in Gamer v. Hannah, 6 Duer, 363 , has furnished the precedent of affording the same relief where the forfeiture is for non-payment of assessments or other taxes as of rents. The authority of that case is conclusive. The only distinction is between penalties and
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forfeitures which are inserted to secure the performance of some act or thing for the benefit of the landlord, other than the payment of money, for the breach of which, therefore, the mere- payment of the money will not in the contemplation of the parties be a complete compensation, where equity will not interfere, and the case of covenants to pay money, where if the money is paid, the landlord gets all he ever designed to have, and to exact more would be oppression and injustice on his part. Here a court of equity is bound to interfere. Covenants to repair, not to underlet or assign, to insure and keep insured, not to remove timber, &c., &c., are of the former ctass. -Covenants to pay rent, taxes, &c., are of the latter (4 Geo. Il. c. 28 ; Rev. Laws, 1802-1813 ; 2 Sellons Pr. 209 ; Burr. 614 ; Wafer v. Mocato, 9 Mod. 112 ; Sanders v. Pope, 12 Ves. 282 ; Reynolds v. Pitt, 19 Id. 134 ; Peachy v. Duke of Somerset, 1 Strange, 447 ; Skinner v. Dayton, 2 Johns. Ch. 535 ; S. C., 17 Johns. 357 ; Davis v. West, 12 Ves. 282, 475).
II. The power and duty of the court to interfere for the relief of the plaintiff against the merciless oppression of the defendant being thus "clear, it is no answer to the plaintiff’s action to say that possibly the relief asked for might have been secured by a motion for a stay in the ejectment suit, (os.) The authority of this court in Gamer v. Hannah, supra, gives to the tenant in such case the election of remedies, whether to proceed by motion or by filing- his bill, as the exigencies of the case may require, (b.) It is not a case of a party having a complete equitable defense in a suit at law, resorting to a bill in equity, merely to stay proceedings in that suit. He had no defense in the action at law. The forfeiture had been incurred, and could not be denied. Willingness, or a desire to pay the taxes and assessments in arrear, or even the actual payment of them, as here, by the tenant, after the commence
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ment of the ejectment suit, was no answer to the allegations of forfeiture then made. It was matter purely supplemental, dependent on the discretion of the court, on a motion. In such a position there is no rule or authority that prohibits the defendant from himself resorting to equity for relief, (c.) The party so situated is not to be put to the peril of staking his fate upon a motion, wherein he may be outsworn, and that falsely, by his adversary. He has a substantial and recognized right, and is entitled to the established and usual remedy to enforce that right. He is entitled to a trial upon the merits of his application for relief, upon which the ordinary rules of evidence shall be applied, and the safeguard of cross-examination secured, and where he may have his appeal on the law and the fact, and may not be concluded by the exercise of the discretion of a judge at chambers on affidavits. A careful examination of the conflict of evidence in this case, will show the value and importance of the right of the tenant to go into equity, (d.) The entire fitness and propriety of opening the forfeiture in this case is self-evident. The taxes had been left unpaid, partly from mere improvidence, the tenant considering, as the referee finds, that the delay was immaterial, and that there was no need of promptly paying them, and partly from a notion that as long as the landlord chose to leave a much older assessment unpaid and undischarged, it would do no harm to leave the latter assessment in the same condition. When called to account by the ejectment suit, he pays all the taxes and assesments, notifies the landlord, and tenders rent, interest and costs, and still the landlord refuses to raise the technical forfeiture; but, having got all that he was entitled to, seeks to punish the tenant by extorting from him his investments in the demised premises, found by the referee to be worth, forty-two thousand five hundred dollars, and his prospective profit of rents, one hundred thousand dollars
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more, (e.) Judge Stoey, in treating of the subject, would seem to have had this case and these parties in mind (2 Eq. Jur. § 1816).

The judgment seems to be erroneous in form. It ought, probably, to have directed the plaintiff to pay the money into court, in case the defendant should decline to receive it, instead of requiring him to forfeit or endanger his right of appeal by accepting the amount awarded to him in the judgment, or to hazard the ultimate recovery of the money so awarded, by refusing to receive it when tendered to him. But, as no point is made by the appellant’s counsel upon that question, it is not necessary for us to consider it further.

In former times, the right of a lessee to invoke the interposition o'f a court of equity in matters' of this character, was founded upon the necessity of the case. It was because the defendant in an action of ejectment, brought to enforce a covenant of forfeiture, was wholly remediless at law, and, therefore, courts of equity would entertain jurisdiction of his suit, founded upon sufficient facts, for the purpose of administering justice between the parties according to the benign principles of equity and good conscience. The one hundred and fiftieth section of the Code, however, now permits a defendant to set forth by answer as many defenses and counter-claims as he may have, whether they be such as have heretofore been denominated legal or equitable, or both;” and, of course, a suit of this character is not necessary for the protection of the equitable, or any, rights of a tenant against whom an action of ejectment has been brought by his landlord to obtain possession of the demised premises because of a violation of the covenant of the former to pay taxes and assessments. If he is entitled to any

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relief in equity, he may obtain it by means of a proper answer in the ejectment suit itself.

It is true, the taxes and assessments which the tenant in this case had undertaken to pay were not only unpaid when thu action in ejectment was commenced, but still remained unpaid at the time the answer was put in. But that was Ms own fault. Surely, he was not entitled to any greater favor because of that further failure by him to perform his legal obligation; nor was it necessary for him to institute this action for the purpose of setting up the • equities acquired by him by reason of such payment of taxes, &c., pendente lite. For, if those payments operated as an equitable release and discharge of the term from the legal forfeiture which had been incurred because of the previous failure of the lessee to perform his covenant, they would have constituted a perfect defense to the action of ejectment if duly set forth in a supplemental answer ; and, in that case, certainly, the defendant then would have been entitled, upon a proper motion, to an order permitting him to put in such an answer.

Assuming, then, as may well be done, that the plaintiff here might have' asserted and protected his equitable rights to the fullest extent in the action of ejectment, and that this suit was, therefore, wholly unnecessary and improper, we may; without pausing to inquire whether the complaint here ought not to have been dismissed for that reason alone, next consider the question whether the bringing and prosecution of this suit by the plaintiff therein, did not, under •the facts and circumstances of the case, constitute such a violation by him .of the fundamental principles of equity as ought to deprive him of any equitable right he might otherwise have had to the relief prayed for.

Saying nothing of the omission of the lessee, for several years, to pay the assessments and taxes, it was, obviously, his duty as an honest man, to pay all the

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back taxes and assessments and to redeem the property from the tax sales which had been had, immediately upon and after the commencement of the action of ejectment. If he had done that, the lessor’s property would have been released from the dangerous liens upon it, and he could have used it for the purpose of obtaining a loan, if he desired to do so, at once ; and it is possible that the latter would then have been willing to release the lessee from his forfeiture, on proper terms as to costs. If not, the making of such payments, within the three months which had elapsed before the answer was served and the averment thereof in such answer, would have left nothing to be determined in the ejectment suit, except the single question whether the defendant ought, under the rules and principles which control the decisions of the courts in equity in such cases, to be relieved from the forfeiture which had legally attached. But, instead of paying the back taxes and assessments and redeeming the premises from the tax sales immediately upon the commencement of the action of ejectment, the lessee suffered more than three months to pass away before he put in an answer, and then falsely denied therein the fact alleged in the complaint, that certain taxes (other than those fbr which the premises had been sold) remained unpaid; thus raising an issue by the averment of a denial which he, himself, proved upon the trial to be untrue, and which delayed the trial for several months more, and until the cause could be reached in its regular order upon the calendar; and it was not until he had thus delayed the lessor for about ten months, during all which time the premises remained charged with the lien of the unpaid taxes, that he paid the same. And, even then, instead of obtaining leave and serving a supplemental answer setting up such payment in the ejectment suit, where he could have obtained all the substantial relief to which ho could be entitled in

Concurrence

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any action, he still further delayed the lessor in obtaining the determination of the litigation, by bringing this unnecessary suit and obtaining an injunction restraining the latter from proceeding with his action of ejectment, until this suit in equity could be reached upon the calendar, tried, and determined.

Considering all these facts, thus stated, I have arrived at the conclusion that the plaintiff was not entitled to any relief in this action, and that a judgment ought to have been rendered upon the pleadings r and proofs dismissing the complaint with costs, upon the ground, first, that the suit was wholly unnecessary, inasmuch as the plaintiff therein could have obtained all the relief to which he was entitled, if any, by paying the taxes and setting up in his answer in the action of ejectment the same facts, substantially, which form the subject matter of his complaint here; and, secondly, because the bringing of such unnecessary suit, the procuring of an injunction therein, and the prosecution thereof, under the circumstances above detailed, together with the conduct of the plaintiff in delaying the determination of the action of ejectment by putting in an answer which was untrue, constituted such breaches of the rules of equity and good conscience as deprived Mm of all claims to equitable relief in tMs suit.

Having arrived at this conclusion, it is unnecessary to consider the question whether-a covenant on the part of a lessee to pay taxes as they become due and payable, is a covenant for the payment of money, merely ; or whether one who has thus covenanted and who has legally forfeited Ms term because of a breach thereof, is entitled to relief in equity within the principle of adjudicated cases.

The' judgment should be reversed, and a judgment entered dismissing the complaint, with the costs of the action and appeal.

I concur in reversing the judgment. The laches and action of the plaintiff has been such as not to entitle him to favorable consideration by a court of equity.

I am unwilling to make this case a precedent for granting relief under circumstances of such gross and inexcusable neglect.

Monell, J.—Dissented.

Note.—The general term order entered on above decision by defendant without notice to the plaintiff, reversed the judgment below and dismissed the complaint.

Thereafter plaintiff at a subsequent general term moved for a re-argument, or, if that was denied, for a resettlement of the order entered so that it should provide for a new trial, instead of a dismissal of the complaint.

The motion for a reargument was denied, and that for a resettlement granted.

The decision is reported, post.

Cases cited