Linden & Fritz v. Hepburn — 5 N.Y. Super. Ct. 668

Majority

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Linden and Fritz v. Hepburn and others.

Headnote

The code of procedure has not changed the inherent difference between legal and equitable relief; although it has abolished the distinction between legal and equitable remedies.

A complaint may now ask alternative relief, of which one alternative could formerly be obtained only in an action at law, and the other only by bill in equity ; but it cannot demand inconsistent relief.

Thus, a lessor cannot, in the same complaint, seek a forfeiture of the lessee’s term and an injunction against a breach of his covenant as to the particular use to be made of the tenement; the forfeiture being totally inconsistent with any equitable relief.

A lease by the lessee to a sub-tenant for the residue of his original term, reserving rent to himself and a right to re-enter for breaches of the covenants which required the sub-tenant to keep the covenants in the original lease; is a sub-lease as between the original lessee and the sub-tenant, and not an assignment of the original lease. The lessee may re-enter for breaches of the conditions, although there be had no reversion.

(Before Oaklet, Ch. L, and Sandford and Paine, J.J.)

Nov. 30 ;

Dec. 21, 1850.

This case came before the court on two appeals taken by the defendants Hepburn and Wills, (who alone defended the suit,) one, from an order at chambers granting a motion for an injunction, the other from a judgment at the special term overruling a demurrer to the complaint.

The complaint made the following case. James H. Roosevelt leased to A. and F. Roux, the houses and lots, 478 and 480 Broadway, in the city of Hew York, for eight years from ■Hay 1st, 1845. The lease provided, that if the rent should be unpaid, or default be made in any of the lessee’s covenants, the lessor might re-enter. The lease was declared to be on the express condition, that the premises were to be occupied and used only as a dwelling and cabinet maker’s shop and ware rooms, except that the basements on Broadway might be let to trades not noisy, but not for billiards, tenpins, &c.; that no persons, furniture, &c., should be placed or go on the roofs of the Broadway houses; that no projecting signs should be put up, nor any awnings or posts; and that no alteration should be made in the buildings without the lessor’s written consent.

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In March, 1848, A. and F. Roux transferred the lease to the plaintiffs, who in the same month demised to the defendant West, for five years from May 1st, 1848, the whole of 480 Broadway, except the front basement and a room adjoining it, subject to all the covenants and conditions contained in the original lease. West covenanted to observe and fulfil the same, and his lease contained a provision that the plaintiffs might re-enter if any default should be made in any of the covenants therein contained. The rent was payable by West to the plaintiff. West entered, and is in. possession of part of the tenement so underlet, and Hepburn and Wills are in possession of the residue, under West.

West and the other defendants, have broken the covenants of the lease and conditions in all the four particulars before mentioned. They are using the premises for the retailing of liquors, &c., have kept furniture on the, roof, put up projecting signs, and made unauthorized alterations in the buildings. By reason of which the lease to West has become forfeited, and the plaintiffs are entitled to re-enter.

The complaint prayed for judgment to that effect, and that the defendants might be removed from the premises and the plaintiffs put in possession. And that the defendants might be enjoined from using the premises in the manner complained of, and from violating the covenants and conditions in Roosevelt’s lease.

The plaintiffs moved for an injunction, which was granted, after argument, so far as to restrain several of the inhibited uses of the premises. The defendants demurred to the complaint, and the court, at special term, overruled the demurrer.

J. Cochran, for the defendants.

J. W. JTnox, for the plaintiffs.

The only ground presented by the demurrer which required any serious consideration, is that no right of entry exists in the plaintiffs; that the lease executed by them to West, operated as an assignment of the

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original lease, pro tanto, and there being no reversionary interest in the plaintiffs, they cannot recover.

Whatever the effect of this lease might be, as between West and the original lessor of the demised premises, we have no doubt that as between West and the plaintiffs, it is to be regarded as a sub-lease, and not as an assignment of the original term. The right to re-enter was reserved to the plaintiffs, and this suffices to enable them to enter for breach of the conditions, although there be no reversion remaining in them. (Doe. ex dem. Freeman v. Bateman, 2 B. and Ald. 168.) And see Kearney v. Post, 1 Sandf. R. 105; affirmed on appeal, 2 Comst. 394. The judgment for the plaintiffs on the demurrer, must be affirmed with costs.

On the appeal from the order granting the injunction, a different question arises. The complaint, after setting forth the violations of covenants and conditions for which the plaintiffs seek to recover, prays for a judgment of forfeiture of the term of years, that the defendants be for that cause dispossessed, and that the plaintiff be put into possession of the premises. It then prays for an injunction, to restrain the defendants from making alterations in the buildings, and from using them for retailing liquors and in other modes prohibited by the covenants in the lease.

The forfeiture and re-entry prayed, are the relief heretofore granted in the action of ejectment brought for the recovery of demised premises. The injunction asked, is purely equitable relief, heretofore given in a chancery suit, and in conformity to the principles of equity. The ejectment brought to effect a re-entry for breaches of the condition in a lease, has always been regarded in the law as a hard action, one strietissimi jturis ; and the English chancery reports abound in cases in which the courts of equity have been importuned to relieve tenants against the forfeitures claimed in such actions. A proceeding like that before us, would never have been thought of under the system of remedies in force prior to the code of procedure. Equity abhors forfeitures, and always relieves against them when possible to do so; and no man would have ventured, under that system, to ask her for one of her most benign remedies, while in

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the same breath he demanded from her a vigorous forfeiture of his opponent’s estate in the subject of the controversy.

Does the code of procedure make any change in this respect ? Can a plaintiff, under the code, ask for equitable relief, and in the same suit, demand a forfeiture? We are clear, that the code has not altered the rule. It has abolished the distinction between legal and equitable remedies ; but it has not changed the inherent difference between legal and equitable relief. Under the code, the proper relief, whether legal or equitable, will be administered in the same form of proceeding. In some cases, alternative relief may be prayed, and relief be granted, in one or the other form, in which cases an action at law was necessary before to attain the one form, and a bill in equity to reach the other. A suit for specific performance is one of that description. But we think inconsistent relief can be no more asked now than it could be under the old system. A vendor cannot now exhibit a complaint, demanding payment of an instalment of purchase money in arrear, and also a forfeiture of the contract of sale and restoration of possession; even if the contract expressly provided for such payment and forfeiture.

There can be no better illustration of om- meaning than this very case. The forfeiture of the term, is a relief totally inconsistent with any equitable remedy. The lessor may pursue his remedy for a re-entry and possession; or he may proceed for an injunction and damages, leaving the tenant in possession. He has an undoubted option to do either. He cannot do both at once.

“ He that seeks equity, must do equity,” is a maxim which lies at the foundation of equity jurisprudence; and it is not at all affected by any change of remedies. We imagine that a much broader effect has been claimed for the violation of the distinction between legal and equitable remedies, than was ever intended by the legislature. The first section of the code, shows what was intended by the word remedies. It is limited to actions and special proceedings, and the declared object of the preamble to the code, .is, simply to abolish the distinction between legal and equitable actions. There is no ground for supposing that there was any design to abolish the distinction

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between the modes of relief known to the law as legal and equitable, or to substitute the one for the other, in any case. Those modes of relief, the judgment or the decree, to which a party upon a certain state of facts, was entitled, were fixed by the law of the land. Ho inference or deduction from a statute, nothing short of a positive enactment by the legislature could change them. The code contains no such enactment, and we repeat that we do not. perceive in it any countenance for an • inference or deduction to that effect.

The chapter of the code relative to injunctions, in our judgment, does not affect the question. It substitutes an order for the writ heretofore used, and it defines the cases in which it may be granted, the latter being the same substantially as were established in our court. of chancery. It does not profess to create a new remedy. On the contrary it recognizes the injunction as an existing provisional remedy, provides the order in place of the writ, and regulates the mode of granting it. Its character as a mode of equitable relief is not at all altered or impaired.

Our conclusion is, that the plaintiffs had no right to an injunction, while they demanded a-forfeiture of the lease. As the case made by the complaint would entitle them to -an injunction if their relief had been limited to that remedy together with damages, we will permit the injunction to stand, on their stipulating not to take judgment for a forfeiture or delivery of possession of the premises. And they may amende their complaint so as to ask for damages.

Unless they thus stipulate, the order for the injunction must be reversed.