Thurber v. Losee

Jenks, P. J.: On or about April 9, 1915, the plaintiff leased from the defendant an inn for one year from May 1, 1915. There were two renewals, of which the second expired on April 30, [149] 1918. The lease and the renewals provided that at expiry of the term the lessor would buy certain furniture and household goods of that inn. The value thereof was to be determined by appraisers, and this was done. This action is to recover that value. The defendant joined issue by answer that inter alia contained two counterclaims. The second counterclaim presents the question which I shall consider. The plaintiff had leased these premises first in 1904 from the husband of this defendant for a term of one year. There were nine successive renewals of the lease, whereby the plaintiff remained in possession of the premises until April 30, 1914. But that- lessor had died on the previous March first, and had devised the premises to this defendant, who was the lessor thereafter. The said lease of 1904 contained a covenant that this plaintiff would quit and surrender the premises in as good a state and condition as reasonable use and wear permitted, damages by the elements, etc., excepted. This covenant was continued in the several renewals between the said original lessor and lessee and also in the lease and the renewals between the present parties. The said second counterclaim rests upon this covenant. At trial the learned court excluded any testimony relative to a violation of the covenant during the periods that were within the time when the plaintiff and the defendant’s said husband and devisor were lessee and lessor, respectively. I think that the court erred in this limitation. If the original lessor had survived the termination of the last lease, the rule of McGregor v. Board of Education of City of N. Y. (107 N. Y. 511) would have applied and the counterclaim would have been available in full force (Code Civ. Proc. § 501, subd. 2), for the action upon such covenant is contract, not tort. (24 Cyc. 1112.) The covenant ran with the land (Demarest v. Willard, 8 Cow. 211; Knutsen v. Cinque, 113 App. Div. 677; Lehmaier v. Jones, 100 id. 495; Taylor Landl. & Ten. [8th ed.] § 262), and the defendant stood in the shoes of her devisor so far as her personal right of action upon that covenant was concerned. (Real Prop. Law, § 223.) The new lease of renewal required by the death of the original lessor did not affect the element of continuity that was considered in McGregor’s Case (supra), and the variances therein as to [150] rental and water and sewer rates were not to my mind material to the question now considered. The evidence excluded was competent upon the question of damages for violation of the covenant. (Taylor, supra, § 368.) The judgment and order should be reversed and a new trial should be granted, with costs to abide the event. Mills, Blackmar and Kelly, JJ., concur; Putnam, J., reads for affirmance.