Bennett v. Schoellkopf , 12 A.D. 98 ( 1896 )

Ward, J.

It is apparent that, unless, the defendant’s contention that the act of the assistant superintendent of canals excused the defendant from the payment of the rent.stipulated in the lease after the dredging had ceased, can be sustained, we must sustain the exceptions of the plaintiff to the verdict as directed by the trial court. The defendant insists that as he was prevented by the action of the State authorities from making the Use of the dock available for deep draught vessels, such vessels as were used in the commerce upon the great lakes, he was deprived of the beneficial interests in the dock, and the real purpose of his contract with the plaintiff failed; that the leasing of the dock by the plaintiff conferred the appurtenant right upon the defendant to so deepen the water as to permit the approach of the lake'vessels to the dock, and that that right was within the spirit and purview of the contract between the parties, and being deprived of that right was an eviction, or, if not an eviction, a defense on the part of the defendant as against the plaintiff’s claim for rent as being an act of sovereignty exercised by- the State within the provisions of the supplemental contract. In the absence of any stipulation in the contract in regard to the dredging, and in the face of the provision in the contract that no dock was to be built within 100 feet of the channel, ánd in the face of the fact that the precise situation of the dock, the use to which it had been appropriated, the depth of the surrounding water, and the canal rights of the State authorities in the premises, all of which was known to the defendant when he • entered into the lease, wé cannot see how the defendant’s contention can prevail.

It is elementary'that the tenant while in possession of the demised premises cannot dispute his landlord’s title1 or refuse the payment of rent except upon the violation of some stipulation of the contract itself which excuses him. The defendant took the premises and stipulated to pay the rent ■ in the condition in which the premises were at the time of the making of the lease. His rights under the contract are measured and determined by its terms. The canal authorities were not seeking to deprive the defendant of any privileges leased to him by the plaintiff or interfering with the subject-matter of the lease. They were simply exercising a power essential to the protection of the public interests and preserving, the conditions that existed with reference to the leased property as they existed when the lease was executed.

It was plainly contemplated by the supplemental contract that the State authorities might interfere with the beneficial use of the dock in question, and the defendant stipulates, as we have seen, “ to use his best endeavors to protect and to secure the continuance of the license, permission and grant heretofore made to said first party of the right to use, improve and occupy the certain portion of the breakwater and Erie basin described in the lease.”

The case of Mattoon v. Monroe (21 Hun, 74) is a strong authority to sustain the plaintiff’s position here. Judge Hardin, in an exhaustive opinion, upon facts somewhat similar to those in the case at bar, reaches conclusions which should prevail here.

And reference may profitably be made in this connection to Tilyou v. Reynolds (108 N. Y. 558); McKenzie v. Hatton (141 id. 6); People v. N. Y. & Staten Island Ferry Company (68 id. 71); Gallup v. The Albany Railway Company (65 id. 1); Gilhooley v. Washington (4 id. 217).

These views lead to the conclusion that the plaintiff’s exceptions should be sustained, and that the verdict be set aside and a new trial granted, with costs to abide the event.

All concurred.

Plaintiff’s exceptions 'sustained, and a new trial ordered, with costs to abide the event.