Kennedy v. City of New York

Decision Date05 October 1909
Citation89 N.E. 360,196 N.Y. 19
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, Second Department.

Consolidated action by James Kennedy against the City of New York. From an order of the Appellate Division (127 App. Div. 89,111 N. Y. Supp. 61), reversing a judgment entered on a directed verdict for plaintiff, he appeals. Reversed and judgment of trial term affirmed.

The plaintiff is the owner of certain premises situated in that part of the city of New York formerly known as Long Island City. These premises had been leased to the latter city by one of the plaintiff's predecessors in title for a term of five years, from January 1, 1891. The lease was in writing, and the rent reserved was $5,000 a year, payable monthly in advance. At the expiration of the term in January, 1896, the original lessee and its successor in interest, the city of New York, held over, and continued in possession of the premises until some time in the year 1899, when the premises were abandoned. On account of the defendant's holding over into the month of January, 1899, the plaintiff elected to treat it as a tenant for that year, and commenced two actions against it to recover the rent for that period. These two actions were commenced in 1905, and they were consolidated by order of the court. The present appeal is from the judgment rendered in the consolidated action. Prior to the commencement of the two actions thus consolidated, and in 1904, the plaintiff had instituted another action against the defendant to recover the rent of the same premises for certain months of the year 1898. That first action, it will be observed, was instituted long after the rent for both the years 1898 and 1899 had accrued. In that first action the defendant made an offer of judgment, which offer was accepted, and upon which a judgment was entered in February, 1905. After the entry of judgment upon that offer the defendant interposed answers in the actions which had been commenced to recover the rent for the year 1899, setting up the judgment for the rent of 1898 as a bar to any recovery in the actions for the rent of 1899, and alleging that as the rent for both the years 1898 and 1899 was due at the time the judgment for the rent of 1898 was entered, the plaintiff was bound to unite in one action all its claims then due. The trial court overruled this defense, and directed the jury to bring in a verdict for the plaintiff. Upon appeal the Appellate Division sustained the defense of the former recovery as a bar, reversed the judgment, and dismissed the complaint. From that judgment the plaintiff now appeals to this court.Hector M. Hitchings, for appellant.

Francis K. Pendleton, Corp. Counsel (Clarence L. Barber, of counsel), for respondent.

WERNER, J. (after stating the facts as above).

The question to be decided is whether the defendant's liability for the rent of the years 1898 and 1899 arose out of a single contract or out of two distinct contracts, and that depends upon the underlying question whether a holding over from year to year, after the expiration of a definite term, is merely an extension or enlargement of the original term, or whether such a holding over constitutes a new term for each year that it continues. In this jurisdiction it is the rule, settled by long acquiescence, that where several sums or installments are due upon a single contract, they must all be united in one action; and if several suits are brought upon such an indivisible contract, for separate installments after all are due, a recovery upon one will be a bar as to the others. The reason for the rule lies in the necessity for preventing vexatious and oppressive litigation, and its purpose is accomplished by forbidding the division of a single cause of action so as to maintain several suits when a single suit will suffice. Perry v. Dickerson, 85 N. Y. 345, 347,39 Am. Rep. 663;Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. 292,19 Am. St. Rep. 470;Pakas v. Hollingshead, 184 N. Y. 211, 77 N. E. 40, 3 L. R. A. (N. S.) 1042, 112 Am. St. Rep. 601. It is to be emphasized, however, that the rule applies only to such claims as are single, entire, and indivisible. Secor v. Sturgis, 16 N. Y. 548, 554. The Appellate Division has held that the balance of rent due for the year 1898, and the whole of the rent due for the year 1899, were parts of a single or indivisible demand; that although separate actions might have been maintained for each of the monthly installments as they became due, no such procedure was permissible after they all became due; that the same rule applies to the rent for the years 1898 and 1899, where no action was brought to recover either amount until after all was due; and that the judgment for the rent of 1898 was therefore a bar to the action to recover the rent of [196 N.Y. 23]1899. The correctness of this reasoning cannot be successfully challenged if the defendant's occupation of the premises during 1898 and 1899 was nothing more than an extension or prolongation of the original term, and it is palpably unsound if the holding over during these years constituted two separate and distinct terms. We must decide, therefore, which of these conditions existed.

A tenant who holds over after the expiration of a definite term for a year or years may be treated by his landlord as a trespasser, or as a tenant from year to year. If the landlord elects to treat the tenant as holding over for another year, the conditions of the original lease apply, except as to duration. Haynes v. Aldrich, 133 N. Y. 287, 31 N. E. 94,28 Am. St. Rep. 636;Adams v. City of Cohoes, 127 N. Y. 175, 28 N. E. 25. Under such a holding over a tenant is bound for another year, not by virtue of an express contract, but by implication of law springing from the circumstances. Herter v. Mullen, 159 N. Y. 28, 43,53 N. E. 700,44 L. R. A. 703, 70 Am. St. Rep. 517. The only logical deduction from the choice thus given to the landlord of treating a hold-over tenant either as a trespasser or as a tenant for another year is that each holding over, where acquiesced in by the landlord, constitutes a new term, separate and distinct from those which preceded it, and related to each other only in the conditions of the original lease which the law reads into the new tenancy. Some of the text-writers and a few of the earlier decisions seem to have confused the subject by referring to tenancies from year to year, arising by operation of law, as continuations of the original terms, when it would have been more correct to characterize them as new tenancies, subject to the original conditions. The later decisions in this court have, however, defined this species of tenancy with a precision that admits of no misunderstanding. In the case of United M. Realty & Impr. Co. v. Roth, 193 N. Y. 570, 576,86 N. E. 544, 545, it was held, upon the opinion of Chief Judge Cullen, that ‘the right of the landlord to treat the hold-over as a tenant for a new term does not spring from the contract of the parties, but is the penalty imposed by law upon the trespassing tenant.’ The same view was expressed in Judge Vann's dissenting opinion in the following language: ‘Owing to the previous relations between the parties, the law implies a renewal of the obligations dependent on those relations, which measure every detail of the new contract.’ Page 579 of 193 N. Y.,page 546 of 86 N. E. In the earlier case of Laughran v. Smith, 75 N. Y. 205, 210 it was stated to be the settled rule that where a tenant enters under a lease for a year, and holds over after the expiration of the term, ‘The law from the continuance of the possession implies a contract on the part of the tenant to renew the tenancy for another year, on the terms of the original holding,’ and to the same effect is Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609.

The learned Appellate Division apparently based its decision upon three early cases. Two of these (Sherwood v. Phillips, 13 Wend. 479, and Webber v. Shearman, 3 Hill, 547), were cases of distress for rent when that remedy was yet in force. But they have no application to the question at bar, because they simply hold that for the purpose of distraining for rent, the period of possession after the expiration of the term may be considered as an enlargement of the original demise. The third case cited in support of the decision of the Appellate Division (People ex rel. Chrome Steel Co. v. Paulding, 22 Hun, 91) was a proceeding to dispossess a tenant, and appears to have been decided upon the authority of the two earlier cases referred to. It is evident, however, that in People ex rel. Chrome Steel Co. v. Paulding, supra, the late General Term gave too broad an application to the cases in Wendell and Hill, which were criticised and limited in Austin v. Strong, 47 N. Y. 679, affirming the judgment below upon an opinion written by the elder Judge Peckham, on file, but not reported in full. In that case the tenant held over for several years after the expiration of the original lease. As a defense to an action for rent he claimed an eviction from part of the premises during one of the years of the original demise. The court held that an eviction in one year constituted no defense to an action for rent, where there had been a renewal of the lease from year to year by reason of the holding over of the tenant. When the case came before the late General Term (opinion not reported; see Court of Appeals Cases, vol. 310), the court made the following observations: ‘The counsel for the defendants insist that where the tenant holds over for more than one year, the whole period of holding over shall be regarded as one term, and cite as authority Sherwood v. Phillips, supra. For certain purposes that is the rule, for by counting backward it is viewed as one term, and, the mutual obligations of the parties not being changed during the entire time, for the purpose of...

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