Loughran v. Smith , 18 N.Y. Sup. Ct. 311 ( 1877 )

Gilbert, J.:

The instrument subscribed by the defendants, coupled with the acceptance of it by the plaintiff, was sufficient evidence of a parol lease, which, though void for the term, inured as a tenancy from year to year, and governed the terms of the tenancy in all respects, except its duration. It is laid down in the ease of Soprani v. Skurro (Yelv., 19) that a lease executed by the lessee, and not by the lessor, is inoperative, both as regards the inteiest and the covenants, for the covenants depend upon the lease, and if there be no lease, there can be no covenant. But this proposition was overruled in Cooch v. Goodman (2 Q. B., 580; S. C., 2 G. & D., 159), in which the corn! were clearly of opinion that if a lease be executed by the lessee, and he enter and enjoy the lands demised, he is liable to an action of covenant by tbe lessor, though he, the lessor, did not execute the deed. They consider the case as falling within the general rule laid down in Comyn’s Digest (Fait, C. 2) that if one party executes his part of an indenture, it shall be his deed, though the other does not execute his part. But under the statute of this State, which avoids parol leases for a longer period than one year (2 B. S., 134, § 6), such lease was valid only for one year from the 1st of May, 1870, yet the defendants having actually entered under the lease, and continued in the occupation of the demised premises after the first of May in each year, they became tenants of the plaintiff, and liable to pay the stipulated rent until the first of May of the following year. The rent sued for accrued during the months of February, March and April, 1873. We think the defendants are clearly liable for it. (Reeder, admr., et al. v. Sayre, 6 Hun, 564, and cases cited; S. C., Ct. App., MSS.)

The' argument of the appellant, founded upon the supposed lack of mutuality of the contract, we think cannot be sustained. There was a mutual contract in each year, and although the contract, when made, was not mutually binding for the entire term, yet 'the actual enjoyment of the tenancy from year to year by the defendants, with the consent of the plaintiff, is a sufficient consideration for their promise to pay the rent. (L'Amoreux v. Gould, 3 Seld., 349 ; Justice v. Lang, 42 N. Y., 493; Morton v. Burn, 7 A. & E., 19: Kennaway v. Treleavan, 5 M. & W., 501.)

The court properly rejected the evidence offered by the defendant. It would not have established a surrender. (Scheffelin v. Carpenter, 15 Wend., 400.)

The exceptions must be overruled, and judgment ordered for the plaintiff. (

Barnajrd, P. J., and Dykman, J., concurred.

Exceptions overruled and judgment for plaintiff.