Kennedy v. . City of New York , 196 N.Y. 19 ( 1909 )

The judgment of the Trial Term was rendered in an action resulting from the consolidation of two actions. One was commenced February 8th, 1905, and the other December 5th, 1905. The first of these actions was brought to recover the rent accrued during the first four months of the year 1899; the second was brought to recover the rents accruing during the remaining eight months of the year 1899.

On December 31st, 1891, the plaintiff's predecessor in title leased to Long Island City, which later became a part of the city of New York, certain premises therein, and the lessee covenanted to pay the rent monthly at the end of each month. The rental was fixed at five thousand dollars per annum. As no specified term was mentioned in the lease as pleaded, it may be considered as a lease from year to year. The lessee held over during the years 1893 to 1898, both inclusive, and there is evidence that it held over for some part of the month of January, 1899, by reason of which the plaintiff claims that the defendant, as successor of the lessee, is liable for the rent during the entire year of 1899. The trial court directed a verdict for the plaintiff for the rent of the entire year of 1899.

On October 29th, 1904, the plaintiff commenced an action in which the amended complaint demanded rent for the months of August to December, 1898, both inclusive; the defendant offered judgment for an amount of money equal to four months' rent; the offer was accepted, and on February 21st, 1905, judgment was entered pursuant thereto, which was afterwards paid.

The two actions which resulted in the consolidated action above referred to were commenced, one on February 8th, 1905, for the recovery of rent for the months of January to April, 1899, inclusive, and the other commenced December 5th, 1905, to recover rent for the months of May to December, 1899, inclusive.

The defendant's defense to the consolidated action is that, at the time the action was commenced in October, 1904, to recover rent from August to December, 1898, the rent sued for in the consolidated action was then due and should have been included therein.

A single and very simple question is presented by this appeal. The original lease of 1891 fixes the annual rental at five thousand dollars a year, payable monthly, and so far as is disclosed by the pleadings and the evidence no term was mentioned therein. It can, therefore, be treated as creating a tenancy from year to year.

It is undisputed that the original written lease is the only contract made between the parties, and their relations are to be determined by the legal effect of the lessee holding over during the years 1893 to 1899, both inclusive. The defendant lessee does not dispute the holding over during these years, but insists that the recovery of rent in a former action for the months of August to December, 1898, inclusive, and which judgment was paid, is a bar to the action which, as consolidated, seeks to recover the rent for the year 1899. The contention of the defendant is that the rent for the year 1899 being due and unpaid at the time the action to recover the rent for August to December, 1898, both inclusive, was instituted, the plaintiff should have included the 1899 rent therein.

This position of the defendant rests upon the familiar rule that a plaintiff is not permitted to split his cause of action, and if he does so, a recovery on a portion thereof will bar subsequent action for the balance. (Yates v. Fassett, 5 Denio, 21; Secor v. Sturgis, 16 N.Y. 548, 554; O'Beirne v.Lloyd, 43 N.Y. 248; Lorillard v. Clyde, 122 N.Y. 41; Seed v. Johnston, 63 App. Div. 340; Reformed Protestant DutchChurch of Westfield v. Brown, 54 Barb. 191, 199.)

In the case last cited the rule is well expressed: "In order to avoid multiplicity of actions, the law forbids that a cause of action shall be split up for the purpose of bringing several actions. But when several actions payable at different times arise out of the same contract or transaction, separate actions can be brought as each liability enures. Still, however, if no action is brought until more than one is due, all that are due must be included in one action; and if an action is brought when more than one is due, a recovery in the one first brought will be an effectual bar to a second action, brought to recover the other claims that were due when the first was brought." The law relating to the effect of splitting a cause of action is so familiar and well settled that further citation of authority is unnecessary.

We are thus brought to the single and important question whether the lessor has offended against this principle of law and can succeed in the consolidated action brought to recover the rent alleged to be due for the year 1899. As already pointed out, the original lease of 1891 created a tenancy from year to year.

In Webber v. Shearman (3 Hill, 547) it was held that holding over after the expiration of a lease for a year is a continuation of the former tenancy subject to the same right of distress, and this whether the first demise be by deed or by parol. Judge COWEN, in the course of his opinion, stated (p. 550): "Holding over after the expiration of a sealed lease is a continuation of the same tenancy, and an enlargement of the same term."

In Sherwood v. Phillips (13 Wend. 479) it was held that, "Where a tenant enters under a demise for two years, and continues in the possession of the demised premises for the period of nine years, the landlord may, by one distress, distrain for the rent accrued during the whole time; and if the property be taken from his possession by writ of replevin, he may, in one avowry, acknowledge the taking for the whole nine years, as upon one entire lease."

This is certainly contrary to the contention that each year of a holding over must be considered as a new lease subject to the conditions of the old one.

In Haynes v. Aldrich (133 N.Y. 287) Judge FINCH states p. 289): "This court held in Commissioners of Pilots v. Clark (33 N.Y. 251), that the rule is too well settled to be disputed that where the tenant holds over after the expiration of his term the law will imply an agreement to hold for a year upon the terms of the prior lease; that the option to so regard it is with the landlord and not with the tenant, and that the latter holds over his term at his peril."

In Baylies v. Ingram (84 App. Div. 360, 362, 363) the rule is clearly stated as follows: "The relation of the parties under such circumstances has been the subject of repeated adjudication. In the leading case of Schuyler v. Smith (51 N.Y. 309) Judge EARL, in writing for the Commission of Appeals, said, in respect of a tenant's holding over: `The owner of the premises may treat him as a trespasser or as a tenant for another year upon the terms of the prior lease so far as applicable.' The court subsequently reviews many cases and approves of their doctrine, in which the rule is laid down, without qualification, that where a tenant holds over after the expiration of his term, without any express agreement, but with the assent of the landlord, the law will imply that he holds the premises upon the same terms as was his previous holding, and such view has been generally adopted" (citing cases). "The limitation implied by the language, `so far as applicable,' manifestly can have no application in the absence of proof showing a changed condition of affairs which would naturally or of a necessity operate to modify the relations existing between the parties. In the absence of any proof upon the subject there can be no reason for holding that the relations of the parties have changed, as nothing has occurred to break the continuity of the holding, or from which it can be implied that any conditions exist rendering inoperative any of the terms of the lease. Nor do we think that the rule is limited to the relation merely of landlord and tenant in the use and occupation and the payment of rent, so as to exclude the independent covenants from continuing with the other parts of the lease. A holding over, to be upon the same terms as contained in the original lease, carries with it the necessary implication that all of the covenants which became binding by the execution of the lease continue to remain in full force unless changed conditions appear rendering them inapplicable. We can conceive of no sound reason which would warrant the rejection of any part of the lease upon which the parties agreed. Their relation continued in all respects precisely as if the term had not expired. The holding over constitutes merely an enlargement of the term, and the lease is applied thereto with the same force as though it had been re-executed."

The case of United Merchants' Realty Imp. Company v. Roth (193 N.Y. 570) is cited as an authority for the plaintiff, appellant. This was an action brought to recover rent for a part of certain premises in the city of New York for five months included in the year 1906. The complaint contained ten counts, two for each month, one alleging a right to recover because the defendant held over after the expiration of his term, and the other an express contract. This case was decided by a divided court, two judges dissenting. CULLEN, Ch. J., writing for the majority, said: "I concur in the opinion of my brother VANN as to the last five counts in the complaint, but I think that the first five are also good. The question presented by the demurrer to these counts is whether a new lessee, whose lease begins at the termination of a prior lease, can, at his option treat the prior lessee, in case he holds over, as his tenant under the terms of the original lease." (p. 575). This was the sole question litigated. The position of the dissenting judges is thus expressed: "If the relation of landlord and tenant existed between the plaintiff and defendant under the lease which expired on the first of May, 1906, the former had the right to treat the latter as a tenant for another year upon the same terms, for the law implies an agreement to that effect under those circumstances. * * * A tenant holding over from his landlord without leave is liable for rent at the election of the latter upon the theory of a renewal of the lease by implication." (pp. 577, 579). The dissenting judges further held that the relation of landlord and tenant did not exist between the parties during the continuance of the original lease because no part of the term was assigned to the plaintiff by the owner of the reversion. The majority of the court held, however, that a new lessee, whose lease begins at the termination of a prior lease can, at his option, treat the prior lessee, in case he holds over, as his tenant under the terms of the original lease.

The question now before us was not presented in the case we are considering, and it was, on the contrary, clearly assumed that the tenant holding over was bound by the terms of the original lease.

The citation of authority as to the effect of a tenant holding over might be continued, but it seems unnecessary. When we consider this question on principle the position of the defaulting tenant is clear. On the termination of the lease it is his duty to vacate the premises at once, and failing in that he must abide by the election vested by law in the landlord. The latter may evict the tenant or compel him to hold over for another year subject to the terms and conditions of the former lease. No option is vested in the tenant and the action of the landlord is by way of penalty; the element of mutuality does not enter into the situation. The landlord says to the tenant, in effect, I will not evict, but for another year I will subject you to all the terms and conditions of the lease that has expired. The construction which permits the tenant to insist that his occupation of the premises after his default entitles him to all the privileges of a new lease is to ignore the existing relations between him and his landlord.

I am of opinion that the consolidated action seeks to recover rent due under the original lease and its renewals from year to year, and that the former action to recover the rent for a portion of the year 1898, which proceeded to judgment and was paid, is a bar to this recovery.

The judgment of the Appellate Division should, therefore, be affirmed, with costs to the respondent in all the courts.

CULLEN, Ch. J., WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur with WERNER, J.; EDWARD T. BARTLETT, J., reads dissenting opinion; GRAY, J., absent.

Order reversed, etc.