Gluck v. Elkan

• Decision Date: 22 November 1886
• Citation: 36 Minn. 80
• Parties: JOHN G. GLUCK <I>vs.</I> HERMAN ELKAN.
• Court: Minnesota Supreme Court

Page 80

36 Minn. 80

JOHN G. GLUCKvs.

HERMAN ELKAN.

Supreme Court of Minnesota.

November 22, 1886.

The plaintiff brought this action in the municipal court of Minneapolis, on May 4, 1886, to obtain restitution of certain leased premises. The action was tried by the court, who found that defendant went into possession under a lease from plaintiff, by the terms of which, and as a part of the consideration for the use and occupation, the defendant covenanted at all times during the continuance of the term to keep the basement, stairway, and area open, clean, and free from rubbish; that from and since November, 1885, the defendant has allowed the same to become and remain dirty and obstructed with snow, ice, ashes, and rubbish, and during April, 1886, has allowed the stairway and area to become dirty and partially obstructed with ashes and rubbish, and has neglected and refused, when requested by plaintiff, to remove the same or to keep the stairway and area open and clean; that on April 10, 1886, plaintiff notified defendant that, on account of his failure to keep and perform the covenants of the lease, he would not rent him the premises after the expiration of the existing term, and that defendant, on the first day of each month to and including April, 1886, paid to plaintiff the monthly rent according to the lease. The lease was for a term of twenty-one months from August 1, 1884, with the privilege of an extension of three years "at a reasonable rent at that time to be agreed upon by the parties," upon sixty days' notice prior to the expiration of the first term, which notice was duly given. The rent was payable in monthly instalments on the first day of each month. Upon the above facts the court directed judgment for the plaintiff, and defendant appeals from an order refusing a new trial.

P. M. Babcock, for appellant.

Robinson & Baker, for respondent.

DICKINSON, J.

One of the covenants in the lease of the premises to the defendant, and a condition upon which the lease was made, was that the lessee should at all times keep a certain stairway and area — a part of the leased premises — open, clean, and free from rubbish. This the defendant did not do. For several months after the defendant's default in this, the plaintiff received the rent for the premises, which was payable monthly in advance. He so received the rent for the month of April, 1886, on the first day of that month. The lease was to terminate May 1, 1886, unless it should be renewed...