Greton v. . Smith , 33 N.Y. 245 ( 1865 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It is manifest from the evidence that the design of the plaintiff was to practice a fraud upon the defendants. When the aid of the courts is invoked to give effect to a dishonest purpose, the onus is upon the party who seeks interference in his behalf, to show a clear title to the relief he demands. The case disclosed by the record is plain and bald. The plaintiff acquired the control of the premises in question, under a lease for a term of ten years, at a rent of $400 a year. The front rooms were occupied by him, and those in the rear by the defendants. Both were engaged in the same business, though he had another ostensible employment. He induced the defendants, who had been his tenants during the previous year, to continue their occupation of the rooms in the rear of his own, by agreeing to give them a written lease for ten years, free from all conditions except the reservation of an annual rent of $275. He exacted and received the rent for the first quarter, which became due on the 1st of August, 1854. Before the rent for the second quarter accrued, he refused to execute a lease in conformity with the agreement, but offered to sign an instrument prohibiting the defendants from continuing the business, for which they had agreed to lease the premises.

There was no concealment by the plaintiff of his fraudulent purpose. He not only refused to fulfill his agreement, but boasted that he had the defendants in his power, and that he could turn them into the street if they did not accede to his terms. He threatened to expel them from the rooms they occupied, and resumed control of the property by posting advertisements on the door, and negotiating with third parties for a lease of the premises from and after the 1st of November. He denied that the defendants were his tenants, and repudiated any agreement, either express or implied, that they should attorn to him as their landlord.

It is true, that but for his disclaimer of the agreement, and his interference with the possession of the defendants, he could have held them to respond for the use and occupation of the premises, under the rule, which, at the election of the landlord, gives effect to a parol lease, void by the statute of frauds, by implying a tenancy from year to year. But in this case, the plaintiff chose to repudiate the relation of landlord and tenant, and he is concluded by that election. (Morris v.Rexford, 18 N.Y., 552.)

The express contract cannot be enforced; for the appellant chose to ignore it, and to shield himself under the statute of frauds. He cannot recover upon the implied contract; for he deliberately elected to disclaim it, to repudiate his own obligations, and to deny the rights of the defendants. It is true that he did not resort to physical force to expel them from their possession; but he threatened such expulsion, assumed to rescind the contract which the law implied in his favor, and resumed the dominion and control of the property, before the rent for the second quarter accrued. Under such circumstances, the defendants were at liberty to abandon their occupation, without awaiting actual expulsion, and to treat the conduct of the plaintiff as equivalent to a rescission of the contract, and an eviction from the demised premises. (Burns v. Phelps, 1 Stark., 94;Ogilvie v. Hull, 5 Hill, 55; Hall v. Burgess, 5 Barn. Cress., 332; Lawrence v. French, 25 Wend., 445; Dyett v.Pendleton, 8 Cow., 727; Edgerton v. Page, 20 N.Y., 281,283, 284.)

The judge was right, therefore, in his instructions to the jury. He was also right in refusing to charge in accordance with the plaintiff's requests. Some of these were purely speculative. Some of them assumed that the defendants were liable without regard to the conclusions of the jury from the evidence. Some of them related to the effect of isolated portions of the proof, dissevered from all connection with other facts, which the testimony tended to establish, and which gave them peculiar significance and force. Others were, in effect, requests to withdraw questions of fact from the consideration of the jury, and to preclude them, in determining the issue, from weighing the whole body of the evidence. It is manifest that the plaintiff suffered no injustice from the charge, and none from the refusal of the court to permit him to frame his own instructions to the jury. It would be difficult to conceive an attempt more hopeless, than that of a deliberate wrongdoer to obtain benefit, through the verdict of a jury, from an act of sheer injustice.

The appellant complains that he was not permitted on the trial, to disparage the defendants' witnesses by inquiries irrelevant to the issue. The propriety of allowing such inquiries rests in the discretion of the presiding judge. The record discloses nothing to justify an inference that this discretion was abused, and the question is therefore one of which we can take no cognizance on appeal. (The Great Western Turnpike Co. v. Loomis, 32 N.Y. [5 Tiff.], 127.)

The judgment should be affirmed, with costs.

All the judges concurred in the foregoing opinion, except BROWN, J., who read a dissenting opinion, in which Judge DAVIES concurred.

Judgment affirmed.