Dave Herstein Co. v. Columbia Pictures Corp.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: BURKE; CONWAY
• Citation: Dave Herstein Co. v. Columbia Pictures Corp., 4 N.Y.2d 117, 172 N.Y.S.2d 808, 149 N.E.2d 328 (N.Y. 1958)
• Decision Date: 27 March 1958
• Parties: , 149 N.E.2d 328 DAVE HERSTEIN CO., Appellant, v. COLUMBIA PICTURES CORP., Respondent.

Page 808

172 N.Y.S.2d 808

4 N.Y.2d 117, 149 N.E.2d 328

DAVE HERSTEIN CO., Appellant, v. COLUMBIA PICTURES CORP., Respondent.

Court of Appeals of New York.

Decided March 27, 1958.

Alexander Pfeiffer, New York City, for appellant.

Ferdinand Pecora and David H. Horowitz, New York City, for respondent.

BURKE, Judge.

The sole question presented on this appeal is whether a tenant may maintain an action for damages for breach of the covenant of quiet enjoyment where he has failed to perform conditions upon which the covenant is predicated.

In the present case, alterations in the building where plaintiff was a statutory tenant were commenced in July, 1955. From July until the end of October, while these alterations were going on, plaintiff did not abandon the premises. Hence there was no constructive eviction, and no basis for an action for breach of the covenant of quiet enjoyment.

In November, 1955, rent payments ceased. During this month, alterations were started on that portion of the sixth floor not occupied by plaintiff. Although the premises itself was not entered upon, plaintiff urges that the removal of the toilet facilities and the demolition of an area used by plaintiff as a storeroom and shipping area constituted a partial actual eviction. Ordinarily, whether this area was included in the original lease would present a triable issue of fact. It is immaterial in the present case, since plaintiff failed to perform the conditions precedent, i. e., the payment of rent.

Under the original lease, the covenant of quiet enjoyment was predicated upon the payment of rent. Concededly, the rent was not paid from November 1, 1955. The partial actual eviction, if such it was, did not occur until after plaintiff was in default in his rent. He continued in default until obliged to surrender the premises pursuant to a warrant of dispossess, execution of which had been stayed until February 15, 1956.

Such a default in the payment of rent deprives the plaintiff of his right to insist upon the performance of the covenant of quiet enjoyment. Furthermore, there is no suggestion that the performance of this condition precedent has been waived.

The general rules concerning breach of covenants of quiet enjoyment are quite clear. Whether the breach of the covenant is alleged as a defense to an action for rent due, or is used as a basis for an action for damages, the determining factor, with few exceptions, is whether the tenant has vacated the premises.

The rule, first enunciated in this jurisdiction in Dyett v. Pendleton, 8 Cow. 727, is that if the lessor creates a nuisance or performs acts which preclude the tenant from the beneficial enjoyment of the property, as a result of which the tenant abandoned the premises, before rent becomes due, then the lessor cannot maintain an action for rent. The reason for the rule, basic in contract law, is that there was a failure of consideration the tenant was deprived of the premises by the wrongful act of the landlord.

The Dyett case has set the keynote for cases that followed. Based on a sound rationale, the vigor of the rule remains unabated. It should be emphasized that the acts of the landlord must preclude the tenant from the beneficial enjoyment of the premises. Thus, in an action for rent, it is not sufficient for the tenant to defend on the theory that there was a diminution of the beneficial enjoyment of the property. Edgerton v. Page, 20 N.Y. 281; Two Rector St. Corporation v. Bein, 226 App.Div. 73, 234 N.Y.S. 409. Furthermore, there must be an abandonment of the premises by the tenant. Boreel v. Lawton, 90 N.Y. 293; Thomson-Houston Electric Co. of New York v. Durant Land Improvement Co., 144 N.Y. 34, 39 N.E. 7. Lastly, the ouster by the landlord, or the justified abandonment of the premises, amounting to an eviction in law, must have occurred before the rent has become due. Fifth Ave. Bldg. Co. v. Kernochan, 221 N.Y. 370, 117 N.E. 579; Sully v. Schmitt, 147 N.Y. 248, 41 N.E. 514. If the tenant is ousted before the rent becomes due, the landlord may not maintain an action in quantum meruit. Christopher v. Austin, 11 N.Y. 216.

In actions for damages for breach of the covenant of quiet enjoyment, a tenant likewise must show an ouster, or if the eviction is constructive, an abandonment of the premises. Matter of O'Donnell, 240 N.Y. 99, 147 N.E. 541; Scriver v. Smith, 100 N.Y. 471, 3 N.E. 675; Grattan v. P. J. Tierney Sons, 226 App.Div. 811, 234 N.Y.S. 399. It is not necessary to show an ouster where the tenant attorns to a superior title (Matter of O'Donnell, supra; Lindwall v. May, 111 App.Div. 457, 97 N.Y.S. 821) or where the landlord had covenanted to do a specific thing. Thomson-Houston Electric Co. of New York v. Durant Land Improvement Co., supra.

It is also a well-settled proposition that the tenant must perform the conditions precedent to maintain the action for breach of the covenant of quiet enjoyment, unless there was a waiver of those conditions. Silken v. Farrell, 281 App.Div. 718, 118 N.Y.S.2d 16, affirmed 306 N.Y. 585, 115 N.E.2d 686; Baitzel v. Rhinelander, 179 App.Div. 735, 167 N.Y.S. 343; Meyer v. Schulte, 160 App.Div. 236, 144 N.Y.S. 1028. This is so since...