Jacob v. Thompson

McLaughlin, J.: On the 20th of April, 1900, the plaintiff leased to the defendant, for the term of three years from the 1st of May, 1900, at an annual rental of $1,800, payable quarterly in advance, certain premises consisting of a “ house and outbuildings with the land thereto belonging” at Orienta Point, Mamaroneek, Westchester county. The lease was in writing and, among other things, contained the following stipulation: “ The house is to be repapered and painted where necessary and gone over and put in tenantable condition, also the house and outbuildings to be wired for electric lights and fixtures furnished by the party of the first part.” The defendant signed the lease and entered into possession of the premises, the house and outbuildings being wired for electric lights when he took possession, but unconnected, so that the electric power could be turned on. He was dispossessed on April 2, 1901, for failure to pay rent, as appears from an admission made by the respective counsel upon the trial. This action was brought to recover two installments of rent which became due before he was dispossessed. The defendant by his answer denied every allegation of the complaint “ in manner and form as therein alleged ” and then set forth facts constituting an equitable defense and counterclaim, and the relief demanded was for the cancellation of the lease and the recovery of money damages. The equitable defense and counterclaim pleaded was in substance that, prior to the execution and delivery of the lease, it was agreed ' [226] that the plaintiff would, at her own cost and charge, immediately after defendant went into possession, “ procure the introduction of an electric current into said house and outbuildings along wires and fixtures which plaintiff would lay and furnish for that purpose ” so that the said house and outbuildings could be illuminated by electricity ; that this provision of the agreement had not been inserted in the lease in terms through the fraud of the plaintiff and that the defendant executed such lease by mistake, believing that such clause had been inserted therein, and that the plaintiff had failed to carry out the real agreement as made between the parties by the introduction of such electric current. The defendant did not ask to have the lease reformed by inserting in it the clause which he claimed was made prior to the execution of the writing, but at the trial the case was treated by both parties as one in which was involved, on the evidence, the right of the defendant, first, to a reformation of the lease, or, second, to an adjudication rescinding it, or, third, to a recovery of damages for the breach of the lease if it were reformed, and a provision inserted therein in accordance with the defendant’s contention as to what had actually been agreed upon. The justice at Special Term dismissed the counterclaim, holding that the defend ant had failed to prove facts which would entitle him either to a reformation of the lease or its rescission. First. By the admission above referred to the defendant concedes that he was dispossessed for the non-payment of rent on the 2d of April, 1901. If this were so, then it was by a judgment procured by the plaintiff in summary proceedings and that judgment is conclusive both as to the possession up to that time by the defendant and the rent then due from him to the plaintiff. (Brown v. Mayor, 66 N. Y. 385; Reich v. Cochran, 151 id. 122, and cases cited.) A judgment taken by the landlord in summary proceedings for non-payment of rent is conclusive between the parties as to the existence and validity of the lease, the occupation by the tenant and that rent is due. (Reich v. Cochran, supra.) In the case cited it was held that a valid judgment obtained by a landlord in summary proceedings to dispossess a tenant for the non-payment of rent is a bar to an action brought by the tenant against the landlord to cancel the lease between them, even if this question were not litigated or considered in the summary proceedings. Therefore, when the [227] defendant conceded that he had been dispossessed for the non-payment of rent, the trial justice, under the authorities cited, could do nothing but dismiss the counterclaim, and this irrespective of the merits as to the defendant’s defense or counterclaim pleaded. Second. The counterclaim was also properly dismissed for another reason. When the defendant entered upon the demised premises under the lease and thereafter continued in possession of them, he was obligated to pay the rent reserved and he could not excuse himself from making such payment on the ground that the plaintiff had failed to keep her covenant to introduce the electric current. A tenant must pay the rent reserved or move out. This does not mean that if defendant sustained any damage by reason of the breach of the plaintiff’s covenant to introduce the electric current he could not recover the same; on the contrary, he could have maintained an action to recover such damages, or he could have counterclaimed the same in an action brought by her to recover the rent. (Kelsey v. Ward, 38 N. Y. 83; Thomson-Houston Elec. Co. v. D. L. I. Co., 144 id. 44.) But upon the trial the defendant expressly waived “ electric power damages.” The only damage claimed was the failure to introduce the electric current, and when he had waived this the plaintiff, upon both principle and authority, was entitled to recover the amount of rent stipulated in the lease. The counterclaim had been destroyed by the waiver, and the trial court could do nothing but dismiss it. The judgment appealed from, therefore, must be affirmed, with costs. Patterson, J., concurred; Ingraham, J., concurred on the last ground stated in the opinion; Laughlin, J., dissented.