Johnson v. Oppenheim — 35 N.Y. Super. Ct. 440

Majority

p. 440

FRANK JOHNSON, et al., Plaintiffs and Respondents, v. CHARLES J. OPPENHEIM, et al., Defendants and Appellants.

Headnote

I. Lease.—Summaby Proceedings to dispossess.—Warrant issued. 1. Effect of, on cause of action already accrued for breach of covenants, a. It does not affect such cause of action at all.

6. Accordingly, when a lessee covenanted to pay all tames which should be lawfully laid, and assessed upon the demised premises,

p. 441

and every part thereof, as the same shall become due and payable during the term, and certain taxes laid and assessed on the premises during the term, were paid by the lessor; the lessee having neglected to pay the same, and thereafter the lessee was dispossessed under a warrant issued in summary proceedings.

1. Held that lessor was, notwithstanding the dispossession, entitled to recover from the lessee the amount of the tax.

XL Sustaining a Paety’s Case.&emdash;Evidence.&emdash;Trial.&emdash;Explaining Evidence.

1. Where the evidence of a party to an action is contradicted by an instrument in writing executed by himself, the existence of and statements in which instrument are corroborated by the statements of the same party, sworn to by him in an affidavit, it is improper and error to receive in rebuttal or explanation of such evidence so contradicting the party, the evidence of that party’s attorney as to how the instrument came to be made, as to the negotiations and conversations leading to its execution, as to what his (the attorney’s) motives were in entering into an agreement on behalf of his client (the party) leading to the instrument, as to his expressing such views to the other party to the instrument, and as to whether his client had any actual knowledge of what was done.

1. Held that all such evidence was properly excluded.

Before Barbour, Ch. J., Curtis and Sedgwick, JJ.

Decided April 5, 1873.

Appeal from judgment entered upon the verdict of a jury, and from order denying defendants’ motion for a new trial upon the judge’s minutes.

This action is brought to recover a quarter’s rent, ■and is substantially the same as the action between the same parties for the preceding quarter’s rent, where judgment was rendered for the plaintiff and affirmed by the General Term of this court, and reported in 34 N. Y. Supr. Ct. R., p. 416; with an additional cause of action for the recovery of a tax imposed and laid on the demised premises during the term, which tax was paid by plaintiffs on the 14th day of December, 1869, the defendant having neglected to pay the same.

It appeared in the evidence that the lessees (the defendants) were dispossessed from the demised premises

p. 442

on the 24th day of February, a. d. 1870, under a warrant issued in proceedings known as summary proceedings (art. 2, title 10, chap. 8, part 3, R. S.), instituted by plaintiffs.

The court directed a verdict for plaintiffs, for the amount of the rent and taxes, with interest. From the judgment entered upon the verdict given pursuant to this direction, defendants appealed.

Levy Cohen, attorney, and John Graham, of counsel

for appellants,

urged among other things:

I. The plaintiffs were not entitled to recover, under any circumstances, the tax of $2,043, paid December 14, 1869.

In their complaint they allege the dispossession of the defendants on February 24, 1870, by summary proceedings under the statute. The effect of this, we say, was to cancel and annul the lease ab initio (3 R. S. 5th ed., p. 838, § 43).

We deny that the plaintiffs could recover the rent, or tax, in an action upon the lease, after that. At all events, if the lease was unaffected as to the rent accrued before the dispossession, it fell as to its other covenants. Hinsdale v. White, 6 Hill, 507 ; Whitney v. Meyer, 1 Duer, 266 , do not favor our view. Still this point has never been passed upon by the Court of Appeals.

II. The plaintiff’s counsel went into the matter of the Fischer lease fully', before the court and jury. He first introduced the affidavit of A. D. Oppenheim, sworn to January 11, 1870, as the basis of summary proceedings to dispossess Mr. Fischer. He then introduced the lease from the Oppenheims to Fischer, showing, as claimed, a cancellation of that lease on December 29, 1869.

The intent was to show that the Oppenheims had possession, through Fischer, through almost the entire February quarter.

p. 443

The defendants’ counsel, on the examination of Mr. Levy Cohen, desired to go into this whole matter, and show that the defendants were consistent and truthful in their statement as to the surrender of the premises on or about October 1, 1869. They sought to explain the plaintiffs’ own proof. This was denied by the court.

They desired, particularly, to explain how the cancellation of December 29, 1869, came about, and was endorsed upon the Fischer lease.

: Their counsel made a general offer, to relieve, by proof, the Oppenheims from any apparent inconsistency or liability, arising out of what the plaintiffs themselves had first begun. All this was overruled. The proof would have shown that any possession by Fischer, after October 1, 1869, was simply without a claim of right—that he held under no title, and claimed ho title— that he was Wee any other squatter or trespasser, liable to be forcibly expelled by the proper party, whoever he was, and whenever he appeared. The plaintiffs had peremptorily refused to recognize the surrender, or to' accept the key, without denying the perfectness of the surrender. That was admitted. If it was not, the defendants should have been permitted to show that any steps taken by them after October 1, 1869, to expel Fischer, were mere appearances, mere inanities, as against the plaintiffs, and that no possession in reality by them, Fischer, or any one else, existed after October 1, 1869.

The plaintiff’s proof on this part of the case was strenuously-objected to by the defendant’s counsel, and received under exception. Being admitted against their will, was a stronger reason why they should have been permitted to overcome it.

Evarts, Southmayd & Qhoate, attorneys, and Joseph U. Qhoate, of" counsel, for respondents.

It is not proposed to-

p. 444

consider any of the questions arising in this case, that were passed upon by the General Term in the determination of the first action.

The appellants, however, submit as res nova, that the plaintiffs are not entitled to recover the tax of $2,043, paid' December 14, 1869.

This tax was laid upon the demised premises during the term of the lease. It was then due and payable, and the defendants, by a covenant in the lease, obligated themselves to pay it when it should become due and payable.

The action is to recover the quarter’s rent falling due February 1st, 1870, and also the amount of this tax which the plaintiffs paid December 14th, 1869.

The defendants maintain that their being dispossessed by the plaintiffs, under the statutory summary proceedings February 24, 1870, cancelled and annulled the lease ab initio. This dispossession cannot affect the rights of the plaintiffs accruing during the quarter expiring February 1, 1870.

This has been long settled, and it would be unjust to hold that rights of action already vested and perfect, could be at a subsequent day divested because the lease ceased to be longer operative.

This principle applies as much to a covenant to pay taxes on the demised premises, as it does to a covenant to pay rent or other charges. The law does not attempt to draw any distinctions between the various obligations and covenants in a lease under such circumstances, but leaves all upon which a right of action has accrued to be enforced, up to the time the lease ceases to be operative by reason of the dispossession under the summary proceedings. (Giles v. Comstock, 4 Cow., 270 ; Whitney v. Meyer, 1 Duer, 276 ; McKeon v. Whitney, 3 Denio, 45 6 ; Crane v. Hardman, 4 E. D. Smith, 339; Cushingham v. Phillips, 1 E. D. Smith, 419; Davison v. Donadi, 2 E.

p. 445

On the trial the defendants sought to establish a surrender of the premises to the plaintiffs on the 30th of September, previous to the quarter expiring February 1st The plaintiffs claimed that the defendants had possession through Fischer, a tenant of theirs, of some part of the premises, through almost the entire February quarter. A. D. Oppenheim, one of the defendants, testified that Fischer did not remain as their tenant one day after the 30th of September, and that he knew of no steps being taken to get him out, and that he did not make any arrangements with him in January or in the end of December to put an end to the lease, and then give him a new permission to remain in.

The plaintiffs then put in evidence a cancellation of the lease from the defendants to Fischer, dated December 29, 1869, executed by the parties to it, and also an affidavit by the witness, A. D. Oppenheim, sworn to January 11th, 1870, as the basis of summary proceedings to dispossess Fischer as defendants’ tenant, and among other things stating the cancellation December 29, 1870, of the lease to him, and thereafter the letting of the premises to Fischer, as defendants’ tenant, for a term of five days.

The defendants called ■ their attorney, Levy Cohen, Esq., and offered, in order to repel the idea of any contradiction or insensibility to truth in the testimony of the defendant, Albert D. Oppenheim, to show how this cancellation of the lease came to be made, the negotiations and conversations leading to it, the circumstances under which it was endorsed on the lease to Fischer, what witness’s motives were in entering into the agreement on behalf of the Oppenheims, and whether he expresses them to Fischer, and that defendants had no actual knowledge of what was done.

The court overruled these offers, and the defendants excepted, and now urge upon the argument that they

p. 446

should have been allowed to present this kind of testimony.

The court did not err in overruling these offers. It is manifest that where parties to an action testify, the rules of evidence should be adhered to with stringency. When the evidence of a party is contradicted by an instrument in writing executed by himself, and also corroborated by his statements sworn to in an affidavit, it is clear that the testimony of his attorney, such as was offered here, should not be received.

It would be in contravention of what is usually considered law and good morals, and tend to weaken if not destroy all reliance upon the solemnity and efficacy of instruments in writing, as well as upon statements deliberately reduced to writing, subscribed and sworn to in a judicial proceeding. I am not aware of any departure from the rule early recognized in this State, that all anterior verbal negotiations and promises are excluded as being resolved into the writing. Bayard vs. Malcolm, 1 John R. 467.)

The judgment and order appealed from should be severally affirmed, with costs.