Smith v. Kerr

• Decision Date: 17 January 1888
• Citation: 15 N.E. 70,108 N.Y. 31
• Parties: SMITH v. KERR.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 31

15 N.E. 70

SMITH

v.KERR.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, Fifth department.

Summary proceedings under Code Civil Proc. N. Y. tit. 2, c. 17, by John B. Smith, appellant, to recover possession of certain premises in the possession of Abram T. Kerr, respondent.

Henderson & Wentworth, for appellant.

Ansley & Davie, for respondent.

RUGER, C. J.

On the fifth day of September, 1880, the defendant was in occupation of certain premises in the village of Salamanca under a written lease from the plaintiff to him, dated February 20, 1880, describing such premises by metes and bounds, and the building thereon, for a term of three years, at an annual rent of $300. The premises consisted of a plot of ground extending 35 feet front and rear, and 12 rods long, upon which was erected a certain wooden building, intended to be used for mercantile purposes. On that day, the building was destroyed by fire, and thereafter, within four months, the landlord rebuilt upon the same premises a much enlarged building of brick, at an expense considerably in excess of the cost of the original structure. Immediately after the fire, the defendant erected a shanty upon the same premises, and continued to occupy it as a drug-store until about Christmas, 1880, when he removed his goods into and took possession of the brick structure. This proceeding was commenced by the plaintiff to remove the defendant from the premises by summary proceedings, upon the ground of a failure to pay the rent due August 1, 1881, under a parol contract for an increase of rent alleged to have been made about the first of December, 1880. The defense interposed to this proceeding was- First, a denial that any such agreement was made; second, that, if there had been, it was void by the statute of frauds, and ineffectual as a surrender of the existing lease.

Upon the destruction by fire of a structure occupied by a tenant, no obligation rests upon either the landlord or the tenant to rebuild it, in the absence of covenants in the lease requiring it to be done. The tenant is, however, at common law, liable to pay the rent reserved by the lease so long as any part of the demised premises remains in existence capable of being occupied or enjoyed by such tenant. Under the statute, however, in case of the destruction of such buildings, the tenant is entitled to exercise an option, either to declare the lease at an end, and to quit and surrender possession of the premises, or to continue in the possession thereof until the expiration of his term, paying the rent reserved by his lease. Chapter 345, Laws 1860. The mere fact of the destruction of the buildings does not terminate the lease; and the tenant, unless he exercises this option, and effects a full and absolute surrender of the premises, continues liable, under the covenants of his lease, for the payment of rent. Johnson v. Oppenheim, 55 N. Y. 280. The tenant has the right to build on the premises, and occupy such building for the remainder of the term, if he chooses to do so, under the conditions of his original lease; or if the landlord voluntarily elects to rebuild, and does so, the tenant has the right to enter into possession of such new building, and retain it for the term. It is quite clear that, in the absence of a covenant to rebuild, the landlord has no right to enter upon the demised premises, and take possession, to the exclusion of the tenant, for the purpose of erecting a new structure; but, if the tenant makes no objection to such a proceeding, it would be deemed a license from him to the landlord to enter for the purpose of rebuilding. Wood, Landl. & Ten. 915.

In the case at bar the tenant did not elect to surrender his lease; and the landlord, with the apparent consent of the tenant, proceeded immediately to make arrangements to rebuild on the premises. Frequent communications between the landlord and tenant occurred during the erection of the building, from which the consent of the tenant to such a proceeding must be inferred; and indeed he had charge of the work until the foundation walls were laid, and superintended their construction. The landlord at first contemplated erecting a structure substantially of the same material and dimensions as the original building, and had proceeded to some considerable extent in the execution of that project, when his design was arrested by the passage of a village ordinance forbidding the erection of a wooden building in that place. His plans were then changed, and he concluded to build of brick, enlarging the size of the building, and as early as the middle of September had contracted with a builder to perform the work. During the course of the erection, but at what precise time does not appear, he announced to the tenant an intention to increase the rent, but stated that until he knew how much it would cost he could not tell how much more he should charge. To this the defendant replied that he expected to pay more. The rebuilding then continued until it was nearly completed, when the conversation occurred which the plaintiff claims constituted a new lease for the occupation of the premises.

Although the plaintiff's testimony as to the contract was controverted by the defendant's witnesses, yet, as the justice rendered judgment in favor of the plaintiff, we are bound to assume, upon this appeal, that the trial court found in favor of the plaintiff's version of the transaction. Nothing was said in that conversation about the making of a new lease, or the surrender of the old one, but an agreement is sought to be implied from the fact that the defendant agreed to pay an increased rent. As stated by the plaintiff, the conversation was as...