Presby v. Benjamin

• Decision Date: 14 January 1902
• Citation: 169 N.Y. 377,62 N.E. 430
• Parties: PRESBY v. BENJAMIN.
• Court: New York Court of Appeals Court of Appeals

169 N.Y. 377

62 N.E. 430

PRESBY

v.BENJAMIN.

Court of Appeals of New York.

Jan. 14, 1902.

Appeal from supreme court, appellate division, First department.

Action by Frank H. Presby against George G. Benjamin. From a judgment of the appellate division (66 N. Y. Supp. 1141) affirming a judgment for plaintiff, defendant appeals. Reversed.

John Frankenheimer and A. L. Gutman, for appellant.

Henry A. Prince, for respondent.

CULLEN, J.

The action was to recover the rent reserved in the lease of an apartment in the city of New York. The defense was eviction. The claim of the defendant was that, upon leaving his apartment before the expiration of the demised term, he placed the porter of his store, with his wife, in the apartment, as his servants, to take care of the apartment on his behalf during his absence; that the plaintiff refused to allow the defendant's servants to enter or occupy the apartment; and that thereupon he surrendered and abandoned the premises to the landlord. The tenant of the apartment has necessarily, as appurtenant thereto, an easement of way in the common halls or passages which afford access to the apartment from the street. The unjustifiable refusal of the landlord to suffer the tenant to exercise this right of access would amount to an eviction, for it would destroy the enjoyment of the demised premises. The controverted question in the case is whether the action of the landlord was justified. He claims that the attempt of the defendant to place his porter in occupation of the premises was in violation of the terms of the lease, and that he was entitled to prevent it. By virtue of the right to exclusive occupation which a tenant acquires by his lease, he ‘becomes entitled to use the premises in the same manner as the owner might have done, except that he must do no act to the injury of the inheritance.’ Tayl. Landl. & Ten. § 172. This right may be limited or qualified by the terms of the lease, but it is not necessary for the tenant to show any particular provision of the instrument to justify his unlimited right of use and occupation, but the landlord who denies it must point out the covenant which expressly restricts the tenant's rights. The lease provides that the apartment shall be used as a private dwelling only. The defendant's action in no way tended to violate this covenant. The lease contained the further covenant that the lessee would not assign or sublet the premises, or any part thereof, without the consent of the landlord, under penalty of forfeiture. It is first to be observed that ‘such covenants are restraints which courts do not favor. They are construed with the utmost jealousy, and very easy modes have always been countenanced for defeating them.’ Riggs v. Pursell, 66 N. Y. 193; Tayl. Landl. & Ten. § 403; McAdam, Landl. & Ten. § 141. Thus a covenant not to assign does not prevent an underletting (Jackson v. Silvernail, 15 Johns. 278), and a covenant not to underlet the...