Herter v. Mullen

• Decision Date: 18 April 1899
• Citation: 159 N.Y. 28,53 N.E. 700
• Parties: HERTER v. MULLEN et al.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 28

53 N.E. 700

HERTER

v.MULLEN et al.

Court of Appeals of New York.

April 18, 1899.

Appeal from supreme court, appellate division, First department.

Petition by Albert Herter against Jeremiab J. Mullen and another. From a judgment of the appellate division affirming a judgment for plaintiff (41 N. Y. Supp. 708), defendants appeal. Reversed.

Gray, Bartlett, and Vann, J., dissenting.

Bernard J. Tinney, for appellants.

Geo. Putnam Smith, for respondent.

O'BRIEN, J.

The plaintiff's action was to recover rent alleged to be due upon the lease of certain premises for the month of May, 1895, and the six following months of that year. The lease was executed in March, 1894, and was to terminate in one year from the 1st of May following. The defendants, who were the tenants under the lease, vacated the premises on May 15, 1895, but, as it was claimed that they held over after the expiration of the lease for 15 days, it was held that they were liable for the rent for another year, and the plaintiff recovered for the seven months of the year that had elapsed before the commencement of the action. The rent, by the terms of the lease, was payable monthly, and the court directed a verdict for the plaintiff for $558.63, being the stipulated rent for the seven months, with interest.

The complaint alleged the making of the lease, the possession thereunder by the defendants, and that they had continued in possession until the time of the commencement of the action. The defendants, in their answer, allege that they surrendered possession of the premises to the plaintiff on May 15, 1895, and that he accepted such surrender; that they had notified him in the month of February preceding that they would not take or keep the house for another year after May 1, 1895, when the term fixed by the lease expired; that, after this notice, the plaintiff was permitted to show the premises to persons wishing to hire or purchase them, and to place upon the house the usual notice that it was to let; that the defendants moved from the house, with all their property and belongings, and that of the family, on the 1st day of May, 1895, before the lease expired, except from the bedroom, where their mother was confined by a dangerous illness until the 15th of May following, when she was removed, and the premises wholly vacated; and that they were forbidden by the physician in charge from moving or disturbing the mother during the 15 days, and were informed by him that it would imperil her life if an attempt was made to remove her. These affirmative allegations in the answer were pleaded together as a single defense. On the trial it was conceded that the defendants had the affirmative of the issues, since the written lease was produced and admitted by the pleadings and the possession under it.

It appears from the record that the defendants' counsel then proceeded to open the case to the jury, and at the close of the opening the court suggested that the controversy would resolve itself into a pure question of law, and that the facts should be agreed upon. The plaintiff's counsel then admitted that the notice from the tenants of their intention to surrender up the premises on the 1st of May had been given in February, as alleged in the answer. The defendants' counsel then stated that the reason for holding over after the expiration of the lease was the sickness of the defendants' mother, she then being a member of their family; and he stated that, unless he could have it admitted as it is pleaded, he wanted no admission whatever. The plaintiff's counsel then admitted that fact, as set forth in the answer. The last clause of the answer contained an allegation that the holding over was with the knowledge and permission of the plaintiff, the landlord, and at the suggestion of the plaintiff's counsel this allegation was withdrawn. The case then states that upon the record and the defendants' counsel's opening, the court, at the request of the plaintiff's counsel, directed a verdict against the defendantsfor $558.63, and that the defendants excepted to this direction.

It is somewhat difficult to ascertain from the record just what questions were passed upon by the court at the trial. It is clear enough that he held that the defendants were liable for another year's rent from the 1st of May, 1895, notwithstanding the facts alleged in the answer with respect to the illness of the defendants' mother, and the impossibility of her removal without endangering her life. The learned court must also have held that the other allegations of the answer pleaded in connection with the fact just referred to-that, upon the removal of the mother on the 15th day of May, 1895, the defendants surrendered the premises to the plaintiff, and that the latter accepted such surrender-were not available as a defense. In view of the fact that the defendants were requested to withdraw a particular clause in the answer, which was complied with, and of the further fact that the ‘case’ states that a verdict was directed upon the record and the opening of the defendants' counsel, it must, I think, be assumed that the decision was that the answer contained no defense after allegation had been withdrawn, which stated that the holding over was with the consent of the landlord. After the defendants' counsel had withdrawn this allegation, he stated that he desired to have the other facts admitted just as he had pleaded them, and this request was complied with. The admission, therefore, must be held to cover all the facts affirmatively pleaded in the answer, except the particular allegation which had been withdrawn. After verdict was directed against the defendants, it would not be a fair construction of what took place at the trial to hold that the admission applied only to the single fact of holding over on account of the sickness of the mother. It must, I think, be held that it was an admission of all the facts affirmatively pleaded, except the single allegation which the plaintiff's counsel requested to be withdrawn. The direction having been made upon the opening of the plaintiff's counsel, which does not appear in the ‘case’ and upon the record, the fair construction is that a verdictwas directed upon the answer, after modification by the withdrawal of the allegation referred to, and upon the opening of counsel. The record in this connection must mean the pleadings in the case. Kley v. Healy, 127 N. Y. 555, 28 N. E. 593. It was therefore admitted by the plaintiff's counsel that 15 days after the expiration of the term provided by the lease the tenants surrendered the premises to the landlord, and that the latter accepted the surrender. After the surrender, there could be no recovery of rent, since the landlord could not have the use of the premises and the stipulated rent at the same time. When a landlord accepts a surrender of the premises, this act operates to discharge the tenant from all liability for rent in the future; and, if the construction of the proceedings at the trial suggested be the correct one, then the direction of a verdict against the defendants was error.

But, perhaps, the most important question in the case arises upon the facts and circumstances which it is claimed constitute a holding over by the tenant after the expiration of the term specified in the lease. For every purpose necessary to the determination of that question we must assume that the facts are as alleged in the answer, since it must have been upon that assumption that the verdict was directed. There can be no doubt that the rule of law is settled beyond debate or controversy which permits the landlord, at his election, to treat the tenant as holding for another year when the latter remains in possession after the expiration of the term. When the demise is for a definite term of one year at a fixed rent, and the tenant holds over after that term expires, the landlord may treat him as a tenant for another year, and collect rent accordingly. Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 94;Adams v. City of Cohoes, 127 N. Y. 175, 28 N. E. 25. But the question is whether the tenant did, in fact, hold over after the expiration of the term, within the meaning of that rule. If it is an arbitrary one, applicable under all circumstances and conditions, and to be enforced in every case, without regard to the reason upon which it is founded, it may be said that, in a strict sense, there was a holding over in this case. But this rule that obtains in the relation of landlord and tenant is a part of the common law, the chief merit of which is supposed to consist in its adaptability to changing circumstances and new conditions as developed in the progress of time. It is not an unchangeable code, like that of the Medes and Persians, but a system that has grown up with the growth of civilization, and is capable of being molded to meet the wants of society in every stage of its progress. From the facts disclosed by the answer in this case the tenant vacated the house at the expiration of the term, except one bedroom, in which a member of his family was confined by illness so serious that he was warned by the physician that any attempt to remove her would imperil her life. The decision of the learned trial court in the case virtually holds that on the last day of the tenant's term he was placed in a position where he must either pay rent for another year for a house that he did not intend to occupy, or to take the risk of becoming, in a certain sense, responsible for the death of his mother by attempting to remove her from a sick room against the protest of a physician. This would seem to be pushing a rule of law applicable to the relation of landlord and tenant to a point which makes it very unreasonable, if not absurd; and, before a assenting to such an application of it, we are naturally forced to inquire whether there was, in fact, any such holding over by the tenant in this case as the rule...