Coudert v. Cohn

• Decision Date: 14 January 1890
• Parties: COUDERT et al. v. COHN et al.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 309

23 N.E. 298

COUDERT et al.

v.COHN et al.

Court of Appeals of New York,

Second Division.

Jan. 14, 1890.

Appeal from supreme court, general term, second department.

Action by Charles Coudert and Cecile L. Fougera, adminstrators of Edmund Fougera, deceased, against Isador Cohn, Adolph King, and Isador Ball. A judgment for plaintiffs was affirmed by the general term of the supreme court, and defendants appeal.

A. J. Simpson, for appellants.

Geo. W. Roderick, for respondents.

BRADLEY, J.

The action was brought to recover rent of premises described in a written lease made by the agent of the plaintiffs' intestate to the defendants in January, 1884, for the term of two years and five months, commencing on the 1st day of March, 1884, and ending on the 1st day of August, 1886, at the yearly rent of $3,000, payable, in equal monthly payments, on the last business day of each month. The authority of the agent to make the lease not being in writing, it was void. 2 Rev. St. p. 134, § 6. The defendants went into possession on the 1st of March, 1884, and continued to occupy and pay rent up to August, 1885, when they left the premises, and sought to surrender the possession up to the plaintiffs' intestate, who declined to accept it. He recovered for the amount of rent at the rate mentioned in the lease from the 1st of August to the 1st of March following. While the cases are not entirely in harmony on the subject, the doctrine now in this state is such that the defendants, on going into possession of the premises and paying rent, became, by reason of the invalidity of the demise, tenants from year to year, and in such case the continuance of occupancy into the second year rendered them chargeable with the rent until its close. They could then only terminate their tenancy at the end of the current year. Reeder v. Sayre, 70 N. Y. 180;Laughran v. Smith, 75 N. Y. 265. The question presented is, when did the rental year arising out of such relation commence and terminate? It is contended by the defendants' counsel that inasmuch as the end of the term designated by the terms of the lease was the 1st of August, 1886, that was the time when the yearly tenancy, in contemplation of law, terminated, and therefore the surrender was properly made on the 1st of August, 1885. It is urged that this view is in harmony with the recognized principle that, although the lease was invalid, the agreement contained in it regulated the terms of the tenancy in all respects except as to the duration of the term, and Doe v. Bell, 5 Term R. 471, is cited. There a farm was, in January, 1790, let by a parol lease, void by the statute of frauds, for seven years; the lessee to enter upon the land when the former tenant left, on Lady Day, and into the house on the 25th of May following, and was to quit at Candlemas. He entered accordingly, and paid rent. A notice was served upon the tenant, September 22, 1792, to quit on Lady Day. In ejectment brought against him, it was claimed on the part of the lessee that his holding was from Candlemas, and therefore the notice was ineffectual to terminate the tenancy. Lord KENYON, in deciding the case, said and held that ‘it was agreed that the defendant should quit at Candlemas; and though the agreement is void as to the number of years for which the defendant was to hold, if the lessor choose to determine the tenancy before the expiration of the seven years, he can only put an end to it at Candlemas.’ That case has in several instances been cited by the courts of this state upon the question of the force remaining in the terms of the agreement embraced in a void lease. And in Schuyler v. Leggett, 2 Cow. 663, it was remarked by Chief Justice SAVAGE, in citing it, that such an agreement ‘must regulate the terms on which the tenancy subsists in other respects; as the rent, the time of the year when the tenant must...