Fleischman v. . Toplitz

Landon, J. The defendant’s motions for a nonsuit were properly denied. They were based upon the assumption, which, we think, was untenable as a matter of law, that the relation of landlord and tenant continued between the parties, after the destruction of the buildings by fire until the plaintiff' gave notice of his intention to surrender the leasehold premises, or at least until he did surrender them. His requests to go to the jury were coupled with the same assumptions of law, and he thereupon asked the instruction that if the plaintiff did not give the notice of his intention to surrender the premises until the ninth of August, or remained in possession of the premises until that date, the plaintiff was not entitled to a verdict. The facts in these respects were as assumed by the defendant, but we think the law was not. The statute, Oh. 345, Laws of 1860, dissolved the relation of landlord and tenant between the parties unless the plaintiff elected that it should continue. (Smith v. Kerr, 108 N. Y. 31; Johnson v. Oppenheim, 55 id. 280.) The tenant’s election to continue the relation no doubt could be inferred from circumstances. The act, however, does not require the tenant to serve the landlord with notice that he intends to quit and surrender; it provides that upon the destruction of the building without fault of the tenant, the latter “ may thereupon quit and surrender possession of the leasehold premises.” If he does this as soon as it is reasonable for him to do it under the circumstances, he does it soon enough. Here, the destruction of the buildings was complete. The plaintiff’s term as *353 tenant would expire in less than four months. His rent was paid until August first. The defendant requested the plaintiff to execute the order of the board of health, in effect without prejudice to the question of liability. It was proper that the plaintiff should rescue such of his damaged property from the wreck as was worth the labor. The defendant did not ask from him any expression of his purpose respecting the continuance of his tenancy. It is inferable from the circumstances that the defendant regarded it impossible for the plaintiff to continue the tenancy. The few days that he spent in removing the dead bodies of the horses and his own damaged property did not mislead the defendant nor prejudice his interests. The defendant accepted the surrender. The court could not, under these circumstances, hold, as a matter of law, that the plaintiff had elected to continue his tenancy, or had in fact continued it. His occupation subsequent to the fire was not necessarily under the lease, but so far as it was necessary for the removal of the dead bodies of the horses, it was upon the request of the plaintiff ; and for the remaining time, it might have been found to have been upon the implied request of the plaintiff for túne sufficient to remove his own property, and if so, and if any liability was thereby incurred, it was for use and occupation. (Austin v. Fields 7 Abb. [N. S.] 29.) But the defendant did not request to submit to the jury the question whether plaintiff elected to continue under the lease, or failed to surrender the premises pursuant to the statute, but asked an instruction that the plaintiff could not recover, because he did not notify the defendant until August ninth that he intended to surrender, and also because he remained in possession after July thirty-first, and also up to August ninth, neither of which requests was tenable. The defendant also moved for a nonsuit because, as he assumed, the plaintiff was bound to remove the dead bodies of the horses, not only under the terms of the lease which bound him to obey the orders of the board of health, but also apart from the terms of the lease, as the owner of such dead bodies. *354 If the lease was terminated by the statute upon the destruction of the buildings, it is clear that the plaintiff as tenant and as between himself and his landlord, was not bound by its terms to perform any act in respect to the premises which the fire made necessary to be performed. Such performance could not be made until after the relation of landlord and tenant had ceased. Nor would the tenant in such case, apart from the terms of the lease, be obliged to remove the dead bodies of the horses. The act of 1860, in case of a dissolution of the relation of landlord and tenant under it, enables the tenant to quit and surrender the premises, and discharges him from hability for rent for the unexpired term. Manifestly, the damage to the real estate and the burden cast upon it by the fire must in such case be borne by the landlord and not by the tenant. The tenant is free to depart from the untenantable premises ; the landlord resumes possession of his premises in the condition the fire has left them. The defendant after the denial of his motions and requests above considered moved the court to direct a verdict for the defendant. For the reasons already considered this motion was properly denied. No request which it was proper for the court to grant being made to submit any question of fact to the jury, the court did not err in assuming that the defendant did not desire to go to the jury upon any question of fact touching the plaintiff’s intention to continue the tenancy, or election to do so, and hence did not err in deciding upon the evidence that the plaintiff had no such intention, nor made such election, and thereupon directing a verdict for the plaintiff. A question of the admissibility of evidence is presented. After defendant read from plaintiff’s letter of August ninth, the extract quoted above, with respect to the removal of his property and withdrawal of his watchman, the plaintiff was permitted to read from the same letter an extract to the effect that the bill inclosed in the letter was for extra help hired pursuant to defendant’s directions and instructions. This was the bill for $465.50. While this part of plaintiff’s letter did not relate to the *355 same subject as the part read by the defendant, and did not modify or explain it (Rouse v. Whited, 24 N. Y. 170; People v. Beach, 87 id. 508; Grattan v. Metropolitan Life Ins. Co., 92 id. 274), yet as it was of a nature to elicit a reply from the defendant and none was made, it was admissible upon the latter ground. As no error of the trial court requires a reversal, and as the General Term, modified the judgment in defendant’s favor, and the plaintiff does not appeal, the judgment of the General Term should be affirmed with costs. All concur, except Vann, J., dissenting. Judgment affirmed.