In re O'Donnell

• Decision Date: 31 March 1925
• Citation: 147 N.E. 541,240 N.Y. 99
• Parties: In re O'DONNELL.
• Court: New York Court of Appeals Court of Appeals

240 N.Y. 99

147 N.E. 541

In re O'DONNELL.

Court of Appeals of New York.

March 31, 1925.

In the matter of the petition of John J. O'Donnell to settle his account as executor of Michael E. O'Donnell, deceased. From order of Appellate Division (208 App. Div. 374, 203 N. Y. S. 882), reversing a decree of the Surrogate (121 Misc. Rep. 496,201 N. Y. Supp. 463), and disallowing a claim established by such decree, the claimant appeals.

Order of Appellate Division reversed, and decree of Surrogate's Court affirmed.Appeal from Supreme Court, Appellate Division, Second Department.

Charles Coleman Miller, of New York City, for appellant.

Lynn C. Norris, James W. Redmond, Edward M. Perry and Michael J. Joyce, all of Brooklyn, for respondent.

CARDOZO, J.

[1][2] One Michael E. O'Donnell, the life tenant of real property in Brooklyn, made a lease with covenant of quiet enjoyment to the William K. Voorhees Grain Company for 7 years from November 1, 1917, at the yearly rent of $600, payable in equal monthly installments. He died on November 17, 1920, before the 7 years had expired, and with his death the title to the property passed to his daughter, one Anna S. M. Martin, who then and at the making of the lease was the owner of the remainder in fee. The effect was the extinguishment of the estate for years. Williams v. Alt, 226 N. Y. 283, 123 N. E. 499. The lessee became a trespasser if there was continuance of possession ‘without the express consent of the person then immediately entitled.’ Code Civ. Proc. § 1664; Real Prop. Law (Cons. Laws, c. 50), § 530, as added by Laws 1920, c. 930, § 1.

On November 30, 1920, the attorney for the new owner wrote to the lessee, stating that his client had succeeded to the title, and closing with the words: ‘You will therefore kindly until further notice pay all rents to Mrs. Martin.’ This the lessee did for 6 months thereafter. In May, 1921, it was notified that beginning with June 1st, rent must be paid at the rate of $100 a month instead of $50 as before. The attorney for the lessee protested that the owner had recognized the existing lease, and had continued it in force for the residue of the term. The owner in answer ‘repudiated the suggestion that she had recognized the lease’ or adopted it. When June arrived, the lessee tendered its check for $50, paying at the old rate. This the owner returned, insisting that more was due. The result was that nothing was paid that month, or in the two succeeding months, July and August. On August 22d the lessee moved away its goods and chattels, and abandoned possession. A week later the owner sued for the unpaid rents, but at the rate of $50 only. She took the position then, as affidavits filed in connection with a bill of particulars show, that in accepting rent for 6 months she had created a tenancy under the statute (Real Prop. Law, § 232) that would last until the following October, but no longer. The rent so computed was paid, and the action discontinued. In the meantime, as we have seen, the tenant moved out. On September 1st it tendered the keys to the owner, and asked to be relieved of liability for rent thereafter. To this the owner assented, and resumed possession for herself.

The question now is whether there has been a breach of the covenant of quiet enjoyment imposing liability for damages upon the estate of the lessor. The lessee's claim, filed upon the settlement of the executor's accounts, was upheld by the surrogate, who fixed the damages at $1,900. At the Appellate Division the order was reversed and the claim dismissed.

[3][4][5] A covenant for quiet enjoyment ‘can be broken only by an eviction, actual or constructive.’ Scriver v. Smith, 100 N. Y. 471, 477,3 N. E. 675, 676 (53 Am. Rep. 224). An eviction results, however, when the occupant has submitted by valid attornment to a claim by title paramount. Cowdrey v. Coit, 44 N. Y. 382, 392, 393,4 Am. Rep. 690;Whalin v. White, 25 N. Y. 462, 465;Simers v. Saltus, 3 Denio, 214;Curtiss v. Bush, 39 Barb. 661, 664;Merryman v. Bourne, 9 Wall. 592, 600, 19 L. Ed. 683;King v. Bird, 148 Mass. 572, 20 N. E. 196; Tiffany on Landlord & Tenant, 534. There is then ouster under the old title, though possession is resumed under the new one. George v. Putney, 4 Cush. (Mass.) 351, 50 Am. Dec. 788;Holbrook v. Young, 108 Mass. 83. We do not forget, of course, that there are many circumstances in which an attornment by a lessee is a wrong to his lessor, and so of no effect between them. In general, attornment to a stranger is ineffective unless made with the consent of the lessor, or ‘pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction,’ or ‘to a mortgagee, after the mortgage has become forfeited.’ Real Prop. Law, § 224, re-enacting in substance 11 George II, c. 19. This does not mean, however, that a lessee is disabled from attorning to a new title where the title under which he has entered, though valid at the time of entry, has expired in the interval by its natural limitation. Hoag v. Hoag, 35 N. Y. 469, 471; O'Donnell v. McIntyre, 37 Hun, 623, 626; Id., 118 N. Y. 156, 23 N. E. 455;Lamson v. Clarkson, 113 Mass. 348, 18 Am. Rep. 498. At least, that must be his right where, as here, the expiration of the particular estate is not disputed, but conceded. No doubt continued possession, though merely as a tenant at will, is a fact to be considered in reduction of the damages. The lessee is under no duty, however, to hold over upon new terms (Simers v. Saltus, supra), and damages, even if uncertain before, may be ascertained without difficulty when possession has been abandoned. We think the lessee did attorn to a title that was superior to that of its lessor when it paid rent to the owner of the remainder in obedience to her demand. Tiffany, supra, p. 183. The result was an eviction and thereby a breach of covenant, unless the attornment was equivalent to a revival of the lease.

[6] We are thus brought to a consideration of the effect of an attornment when made to title paramount. At common law the consent or attornment of the tenant was essential to a grant of the reversion. Tiffany, supra, § 19, p. 172; 3 Holdsworth, History of English Law, 73, 74, 199; Digby, History of Law of Real Property, p. 245.

‘Attornment at common law signified only the consent of the tenant to the grant of the seignory, whereby he agreed to become the tenant of the new lord.’ Simers v. Saltus, supra, 216.

This consent is necessary no longer. Real Prop. Law, § 248; cf. St. 4 Anne, ch. 16. Not only that, but the grantees of the reversion have a remedy upon most, if not all, of the covenants of the lease to the same extent as the grantor would have had if the reversion had remained in him. Real Prop. Law, § 223. Attornment in its primary sense, as it was understood at common law, is thus an idle ceremony. The transfer of the reversion, whether with the consent of the tenant or without it, is a transfer of the lease and of its rights and obligations. There remains, however, a secondary sense in which the act of attornment is still significant today. Tiffany, supra, § 19, p. 172. Attornment may also mean the acknowledgment by a tenant that he holds under a new lord who claims by title paramount, and not by grant of the reversion or as privy to the reversioner. In such a situation, ‘the new tenancy thus constituted, though popularly spoken of as a continuing tenancy,’ is ‘in fact a new contract and a new demise.’ Oakley v. Monck, L. R. 1 Exch. 159, 164; Tiffany, supra, pp. 179, 180, § 73, pp. 411, 413. Ratification of the old demise, at least in any proper sense, there obviously is none, for he who made the demise has not assumed to act for any one except himself, and least of all for one whose claim is paramount and hostile. Hamlin v. Sears, 82 N. Y. 327, 331. It is possible, of course, to incorporate in the new demise, expressly or by implication, the provisions of the old one, including the term of its duration. Such a case was Austin v. Ahearne, 61 N. Y. 6, where a lessee who had taken a lease from one of two tenants in common attorned thereafter to the other. The attornment was in writing, and in the light of all the circumstances the writing could not reasonably be interpreted as leaving the two tenants in common upon terms of inequality. There are indeed statements in the opinion that seem to go farther, but they were unnecessary to the decision, and were at once characterized as dicta.

‘The present case only calls for a decision as to the precise point involved as between tenants in common. What is said in this opinion concerning the general law of attornment of a tenant to strangers is referred to by way of argument and illustration.’ Austin v. Ahearne, supra, at page 21.

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