Gugel v. Isaacs

Van Brunt, P. J. : On or about the 1st of February, 1894, the plaintiff leased to the defendant the premises Nos. 77 and 79 Hester street and No. 42 Orchard street in the city of Hew York for the term' of three years from May 1, 1894, at the yearly rent of $8,000, to be paid in equal monthly payments in advance, except the last three months’ rent, which was to be paid in advance on the 1st of February, 1897. The lease contained the usual clause of re-entry and a covenant upon the part of the defendant to pay the rent in the manner specified therein. On or about the 15th of October, 1895, the board of education of the city of New York duly made application to the Supreme Court for the appointment of commissioners of estimate for the purpose of acquiring title to certain lands in Orchard, Hester and Ludlow streets, and such proceedings were had that commissioners were duly appointed by the Supreme "Court, and on or about the 25th of Hovember, 1896, the said commissioners made a report which was presented to .the Supreme Court at Special Term, and a motion was then and there made to con [504] firm the same. The plaintiff’s premises, leased as above mentioned to the defendant, were embraced in the proceedings and an award of $43,500 was made to the plaintiff for the land and premises; to the defendant for his leasehold, $750 .; to one Charles Daniel (sub-lessee), $1, and to one Aaron Moshkovitz (sub-lessee), $750. On the 3d of February, 1897, the report of the commissioners was duly confirmed, and pursuant to statute the title to said premises on said day -vested in the corporation of the city of Hew York. The defendant continued in possession of the premises and attorned to the corporation of Hew York on and after the 3d of February, 1897, and paid as rent for the use and occupation thereof to said corporation, from that date to the 14th of April, 1897, the sum of $570, The sum of $750 for the quarter’s rent ending May 1, 1897, which under the terms of the lease became due and payable on the 1st of February, 1897, has not been paid by the defendant. The plaintiff demands judgment for $750 with interest, and the defendant offers to allow judgment for the sum of $21.66, accrued rent to and including February 3, 1897. The question presented by this submission is whether the plaintiff is entitled to' recover the quarter’s rent which fell due on the - 1st of February, 1897, for the succeeding three months, and which it was .provided in the lease made by the plaintiff to the defendant should be paid in advance. The case of Giles v. Comstock (4 N. Y. 270) seems to answer this proposition. In. that case it was held that the landlord was entitled to recover the quarter’s rent, payable in advance on the first day of February, although before the quarter expired a mortgage prior to the lease was foreclosed in chancery, the premises sold, and the' tenant- attorned to and paid the same rent to the purchaser. The rule is distinctly laid down that to bar an action for rent the eviction must take place before the rent becomes due. And whether it became due by special agreement in advance, or without such agreement by the expiration of the term, does not vary the rights of the lessor. The question is as stated in that case, “ When did the rent become due and the right of action arise ? ” This rule does not seem to have been modified by any subsequent adjudication. It is claimed that. the case of Noyes v. Anderson (1 Duer, 342) establishes a different rule. But an examination of that case shows that, although language is used which- may be in [505] conflict with the rule laid down in Giles v. Comstock (supra), yet that it was inapplicable to the facts in the Giles case and in the.case at bar. In the case of Noyes v. Anderson a building was torn, down by the public authorities during the month for which rent had been paid in advance, without notice to or consideration of the tenant. In the case at bar it appears that an award was made to the defendant and to his sub-tenants because of the termination of the lease during the three months for which he was liable to pay rent in advance. It is clear that he received compensation for the liability which he was under by reason of the terms of his lease. The plaintiff, therefore, is entitled to recover $750 and interest and costs. Williams, Patterson and Ingraham, JJ., concurred; O’Brien, J., dissented.