Gilhooly v. Washington — 5 N.Y. Super. Ct. 330

Majority

p. 330

Gilhooly v. Washington.

Headnote

Where a lessor lets parts of a tenement to different tenants, one of whom, (who received the first demise in point of time,) occupied his portion of the tenement as a place of debauchery and prostitution, but the lessor was ignorant that he designed so to use it, and did not connive with him therein ; it was held, that the facts did not constitute an eviction of tenants of other parts of the same tenement, or bar the lessor from recovering from them their stipulated rent.

The omission of the lessor to procure the indictment and conviction of the disorderly occupants, and then to terminate their lease under the statute, is neither a connivance with them nor such an acquiescence in the nuisance, as to furnish evidence of an eviction.

If the other tenants, or any prosecutor, had procured such conviction, it would then have been the lessor’s duty to remove the disorderly tenants. Semi.

(Before Oaklet, Ch. J., and Vanberfoel and Sanbforb, J.J.)

Nov. 21;

Nov. 24, 1849.

This was an action to recover one quarter’s rent of the upper portion of house 23 Dey street, in the City of Hew York, payable in- advance, and due May 1,1849, being the sum of one hundred thirty-seven dollars and fifty cents.

The answer of the defendant set up, that at the time of the commencement of defendant’s term, the basement of the premises had, without his knowledge, been let by the plaintiff for the purpose of prostitution, that the same had been fitted up with reference to such uses, and was- resorted to constantly by persons of abandoned character, in consequence of which, the premises leased to the defendant became unfit for occupation, and the same were abandoned by the under tenants of the defendant, who refused to pay rent therefor; that defendant had notified the plaintiff of the existence of the nuisance in question, and offered to relinquish his lease, which the plaintiff refused to accept, but promised that the nuisance should be abated; that in consequence of such assurance, the defendant had paid the rent of the premises during the first year, which by the terms of the lease, was made payable in advance ; but that the nuisance continued to exist, and in consequence thereof, the defendant had

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been unable to underlet the premises, and had been deprived of all use and benefit of them, and that the same had been wholly abandoned by him during the whole of the quarter ending May 1st, 1849. The defendant claimed to recover from the plaintiff the sum of one hundred thirty-seven dollars and fifty cents, being the amount of one quarter’s rent, ending on the 1st day of May, which had been paid by him at the commencement of the quarter, and that the lease in question should be given up and cancelled.

The reply denied that the plaintiff rented the lower part of the premises in question, for the purposes complained of, and denied all knowledge and belief of their having been so used, or that the defendant had sustained any damages.

The cause was referred to a sole referee, to hear and decide the same. Upon the trial before him, it appeared, and he reported, that during the defendant’s term, the basement in question had been occupied as a drinking saloon, and as a place of prostitution and ill fame, and that great noises and disturbances frequently took place therein. It also appeared that on the 19th of March, 1849, the defendant caused a written notice to be served on the plaintiff, stating the manner in which the premises were kept, and desiring him to remove the nuisance.

The referee reported, that previous to the execution of the lease to the defendant, the lower part of the house had been let by the plaintiff to some person other than the defendant, but that it did not appear that the same was used by the plaintiff for the purposes complained of, or that the nuisance was continued in any way by the consent or connivance of the plaintiff, or by any person deriving any right through him. The referee reported in favor of the plaintiff for the amount claimed; and the defendant appealed from the judgment thereupon entered.

F. Byrne, for the plaintiff.

J. Goit, for the defendant,

relied upon Dyett v. Pendleton, 8 Cow. 727 . He also cited Ogilvie v. Hull, 5 Hill 52 ; People v. Erwin, 4 Denio 130 ; Fish v. Dodge, Ibid. 317; Smith v. Marrable, 1 Carr. & Mar. 479; 2 R. S. 702, § 29.

The referee reported as matter of fact, that the basement of the premises in question had been leased by the plaintiff to some person other than the defendant, prior to the lease of the upper portion of the premises. The question is, whether if a landlord rent a part of a house to one tenant, and then apart of the same house to another, and the former enters "upon the occupation of the portion let to him, and appropriates R to purposes of the description complained of in this case, so as to render the other portion no. longer habitable; the lease to the latter is thereby determined, or he may refuse to pay rent.

The defendant’s counsel, upon the argument, relied upon the case of Dyett v. Pendleton, 8 Cowen 727, which decided, that where the lessor habitually brought lewd women into the same house, a part of which he had demised to a tenant, so as to compel the latter to remove his family by reason of the noise and disturbance, it would warrant a jury in finding an eviction, and debar the lessor of his rent.

This doctrine has never been applied to a case where the plaintiff himself has not been instrumental in producing the state of things set up as an eviction. We do not see on what principle the rule can be applied, where the landlord lets in good faith the part of the tenement whence the annoyance proceeds, and without any reason to suspect the purposes for which the premises are to be used.

It is said, however, that it was the duty of the landlord, upon ascertaining the character of the persons occupying his premises, and the uses to which they were perverted, to cause those tenants to be turned out, and thus to terminate the lease to them, under the remedy afforded him by the statute, which provides that whenever the lessee of any dwelling-house shall be convicted of keeping the same as a bawdy-house, the lease for the letting of the same shall thereupon become void, and the landlord may enter and obtain possession in the same manner as against a tenant holding over. (2 R. S. 702, § 29.)

The remedy conferred by the statute is not, however, to be set on foot by the landlord merely. Any person may institute a complaint against persons of such a disorderly character, and

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procure their conviction. If the occupants of the basement in question had been convicted, we do not say, that the plaintiff would not have been obliged to resort to his remedy, and remove them from the premises. But it was not' more his duty than that of the defendant, to proceed to have them indicted, or to resort to the remedy against them on the ground of nuisance.

The extension of the doctrine of Dyett v. Pendleton to cases like this, would have an important influence on the rights of landlord and tenant in this city ; and we are unwilling to establish the precedent. We do not consider this case as falling within any of the grounds which have been sanctioned as showing an eviction; and the judgment must be affirined.^[1]

(a) (a) Affirmed in the court of appeals, Dec. 30, 1850.

Cases cited

Dyett v. Pendleton 8 Cow. 727 N.Y. p. 331