Lewis v. Ocean Nav. & Pier Co.

• Decision Date: 13 January 1891
• Citation: 125 N.Y. 341,26 N.E. 301
• Parties: LEWIS v. OCEAN NAV. & PIER CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 341

26 N.E. 301

LEWIS

v.OCEAN NAV. & PIER CO.

Court of Appeals of New York.

Jan. 13, 1891.

Appeal from supreme court, general term, second department.

Wm. C. De Witt, for appellant.

Geo. W. Roderick, for respondent.

PECKHAM, J.

The defendant being the owner of some land near the old iron pier, at Coney island, leased the same to the plaintiff and one Tuthill, the latter of whom subsequently assigned all his rights under the lease to the plaintiff. The lease was dated April 12, 1884, and was for the term of two consecutive seasons, commencing on the above-named date, and to terminate with the close of the season of 1885, unless sooner determined for violation of the terms of the lease. The lessees agreed in the lease to erect upon the premises thus leased a building which was to be strictly in accordance with plans to be first submitted to and approved by the secretary of the defendant. The lease then contained the following additional clause: ‘They shall be entitled to remove said building at the expiration of this lease if all rents and arrearages of rent shall be fully paid; if not so paid, the said building shall be forfeited to and become the property of the party of the first part.’ The lessees were to have the right to use the building for a restaurant and saloon, (bar-room,) but for no other purpose. They agreed to pay as rent $2,000 for each season, at specified times, and in stated installments, the last payment in each year being due July 15th. The lessees entered into possession of the premises under the lease, and built a building for a restaurant and saloon, which, so far as appears, was entirely satisfactory to the defendant, the lessor. It was so built as to allow for its being taken down and carried away. It was built on blocks buried about three feet in the sand, and upon these blocks posts were set, and the sand filling up against them. Sills were then placed on the posts, and the building erected. It was built for the very purpose of being easily and safely removed. It was shown by the evidence to have been worth, as a movable building, in the vicinity of $3,000. No fault is found in regard to the first season, and no complaint is made that the rent was not promptly paid. By July 1, 1885, the plaintiff was in arrear in rent for that season, and on the 15th, which by the terms of the lease was the day when the last payment to make up the $2,000 rent for the season was due, the plaintiff was still in arrear. On the 13th of July he paid the president of the defendant $150 in consequence of a conversation that he said he had with him on that day, and he thereafter paid in installments a part of the rent, so that when the season ended he was in arrear but $150, which he paid in February, 1886. He remained in possession of the premises up to May, 1886, when he was ejected by virtue of summary proceedings commenced against him by defendant, as holding over after the expiration of his term under the written lease. He joined issue in those proceedings, and claim that the defendant had renewed the lease for another season, that of 1886. This issue was found against him, and he was ejected accordingly. At the time of his ejection he claimed the right to remove the building, said it was his, and he would remove when he had an opportunity to take his things. He was refused the privilege of taking anything, and subsequently, on attempting to remove the building, was threatened with arrest, and prevented from taking it down. The plaintiff subsequently brought this action to recover from defendant the value of the building, which he claimed the defendant had converted to its own use.

On the trial the plaintiff proved a conversation which took place in July, 1885, between him and the president of the defendant, in regard to the rent. The plaintiff had already testified that, when one of the payments came due in July, he had seen the president, and said to him that he was short of money, and that the president had agreed verbally that, if the boats did not run, the plaintiff need only pay half rent, as plaintiff says he was doing very little business. He was then asked: ‘What was said about your remaining there?’ This was objected to, on the ground that the proceedings before the justice were res adjudicata, and as immaterial. The objection was sustained, and the plaintiff excepted. The plaintiff then testified that, in the same conversation he had with the president in July, the president told him to go on and pay the balance of his rent, and he would be able to make it up next season. The president said he could not give plaintiff a long lease, but plaintiff could stay on another year, and run it the way he was then doing; that they had no fault to find with him. Plaintiff then says he borrowed $150, and paid it to the president on that day. He was then asked if it was in consequence of that conversation that he remained in possession there, and he said it was. This was objected to as irrelevant and incompetent. The objection was sustained, and the evidence was stricken out on motion. It is not perfectly plain from the record whether the whole of this conversation was stricken out, or only that portion which was in answer to the question as to the reason why plaintiff remained in possession. Some portion of the evidence was, at any rate, stricken out, and, after the record of the summary proceedings was put in, the complaint of plaintiff was dismissed, substantially on the ground that no cause of action had been proved. I think it was erroneously dismissed, and the evidence erroneously stricken out. The agreement in the lease for the forfeiture of the building to the lessor, in case the rent was not fully paid at the expiration of the lease, was in its nature a security for the payment of the rent. The purpose for which the building was erected, and the manner of its erection, and the fact that it was erected by a tenant to carry out the business in which he was embarked, and for which he had leased the premises, all tend to confirm the correctness of the conclusion that, were it not for the agreement, the lessee would have had the right, in any event, to remove the building at the expiration of the lease, as being his own property, and the lessor would have had no right to prevent him from making such removal. Ombony v. Jones, 19 N. Y. 234, 239, 243. The right of forfeiture of the building, in case the rent was not fully paid at the expiration of the lease, was a right which might be waived by the lessor. Whether the lessor did so waive it or not would have been a question of fact, if the evidence objected to and excluded had remained in. If the president of the defendant told the plaintiff in July, 1885, before the termination of the lease in the middle of the following September, that he might go on and pay the balance of the rent and make it up the next summer, and that the plaintiff could stay another year, and if in consequence and upon the faith of that conversation the plaintiff continued in possession after the termination of the lease, and failed before that time to pay the $150 and remove the building, I think it clear that, if the jury had found these facts, there would have been proved a waiver of this right to insist upon a forfeiture of the building on account of the non-payment of the balance of $150 due for rent before the termination of the original lease. The most that, under such circumstances, could be insisted upon, would be the payment of all rent due before the termination of the possession, in which case the right to remove existed.

It cannot be supposed that the parties contemplated this forfeiture of the building by the failure to pay the $150 before the end of the season, in September, 1885, assuming that the lessor had told the lessee he might remain in possession another year. At the least, the intention of the parties as to the waiver was, upon this evidence, a question of fact, and the evidence should have been retained for the purpose of submitting it to the jury. The reason for the striking out of this evidence was, as I gather from the record, that the summary proceedings adjudication was regarded as conclusive upon the parties, and that no evidence of a conversation in which defendant's president agreed to let the plaintiff remain on the premises for another year was admissible, because it had been determined in those proceedings that no leasing for another year had been made, and that the plaintiff was holding over under the written lease in evidence. I think this was giving entirely too broad an...