Symonds v. Hurlbut

McAvoy, J.: The action now here was brought to enjoin and restrain the defendant from permitting or suffering an alleged subtenant' to occupy the premises known as 444 West Twenty-second street, New York city, or any portion thereof, and to cancel defendant's lease under which defendant occupied these premises; and judgment was asked directing defendant to deliver up the leased premises to the plaintiff, and for mesne damages. The grounds upon which this relief was demanded are: That defendant violated the terms of the lease under which he was occupying the premises in question in that he caused certain alterations to be made in and about the demised premises; and that he subleased or underlet a portion of the premises to another. The following clauses are those which the plaintiff contends were violated, and because of which violation she claims to be entitled to cancel the lease and to secure judgment to enjoin the defendant from violating it, and directing the person to whom the premises were sublet to cease occupying the place as an under-tenant or sublessee: “ The said premises are * * * to be occupied as a private dwelling and not otherwise.” “Fifth. That the tenant shall neither make nor allow to be made any alterations or improvements in or upon the hereby demised premises, without a consent in writing being first had and obtained from the said landlord, agents or assigns.” [149] “ Tenth. 1 hat the tenant shall not * * * let or sublet the premises or any part thereof, without the written consent of the said landlord or agents.” The evidence was undisputed that one Rector occupied the two upper floors, with his family, from October, 1918, until October, 1921; that Rector paid to the defendant fifty-five per cent of the monthly expenses of running the house, as well as fifty-five dollars a month for the use of these floors; that in one of the rooms on the third floor which the Rectors used as a kitchen, defendant had installed a sink, gas range and other cooking fixtures; and that upon the front door of the premises there had been affixed an announcing bell, bearing the name “ Rector,” which was intended, apparently, to indicate a separate domicile on the part of the other persons occupying the dwelling. There were, in effect, two separate and distinct apartments maintained in this house, which it had been covenanted was to be occupied as a private dwelling and not otherwise. While there was no formal letting to the tenants on the upper floors by the defendant, the character and use of the occupation and its distinct independence from that of the lessor created an underletting which this subtenant could enforce. It is true that both the defendant and his so-called fellow-lodgers in this dwelling contend that there was a community interest established in all the expenses of the house, and that they were merely guests lodging with the defendant and paying their share of the expenses to maintain the household. The circumstances of the arrangement of their method of living, however, belie their claim and render it susceptible of the charge of being a mere subterfuge to defeat the express prohibition against underletting. There is some evidence that the main Idtchen of the house was sometimes used by those occupying the upper floors; but this was doubtless merely incidental to the occupation of the upper floors and does not indicate that the persons who had their own bells, their own bathrooms and their separate kitchen, were merely lodgers in whom no estate had arisen by reason of their separate occupation and the payment of a specific sum as rent. It is obvious that whatever the tenant and under-tenant called themselves by private arrangement, their legal character was that of lessor and lessee; nor was it made clear that the landlord knew of these alterations and this method of occupancy and acquiesced in it prior to the time when she made demand for its cessation. The record’s reading demonstrates that the greater weight of the proof is against the claim of waiver and acquiescence. That the subtenant understood that the payment made by him was in the nature of rent is apparent from his version of the relation [150] as it appears from the following quotation of his testimony: “ Q. You paid $55 a month to Mr. Hurlbut for the use of the two upper floors of that property? A. No, it was always more than that. Q. You paid that to Mr. Hurlbut? A. Yes. Q. You did not pay it to Mrs. Symonds? A. No. * * * Q. And under that arrangement you had the right to occupy the two upper floors of the house? A. Well they were allotted to us. * * * Q. And as a matter of fact didn't you pay Mr. Hurlbut $55 a month as your share of the rent of those premises? A. Well, my impression is that that was the rate that was figured in pertaining to the rent. * * * By the Court: Q. You certainly paid 55% of the rent? A. Yes.” The testimony of the defendant as to his understanding of the arrangement which he had with another occupant prior to the one of whom complaint is made in this action, indicates his own notion of the status 'of his so-called lodgers. This is an excerpt: “ Q. Did Mr. Austin share all the expenses? A. Yes. Q. On what basis? A. The same way he was a sub-tenant too.” The claim that the whole tenancy was reserved by the defendant as tenant of the premises and that there was no subletting seems completely overturned by the nature of this proof. The court should have found, as requested by the plaintiff, that the defendant in violation of the covenants of the lease sublet the second and third floors of the premises to Enoch Eector as subtenant. Upon such finding of the violation by the defendant of his covenant in the lease to refrain from subletting, the plaintiff was entitled as matter of right to cancel the lease and to demand surrender of the premises. It is stated by this court in Boskowitz v. Cohn (197 App. Div. 776, 780): “ Inasmuch as it was made a condition of the granting of the lease to the defendants H. & S. Cohn that they should not, without the written consent of the lessor, sublet said premises or any part thereof, the plaintiff was entirely within his rights in asking the court to grant a mandatory injunction summarily ousting the sublessees.” The fair rental value of the premises from the date of notice of election to cancel the lease and demand for the surrender of the premises, to May 23, 1922, the date when the tenant ceased occupation of the premises, was at the rate of $2,500 per annum and amounted for the full time to $3,882. This fact was found by the court without any opposing evidence, and since the evidence showed incontrovertibly that plaintiff was within her rights in canceling the lease, the tenant thereupon became á trespasser and the plaintiff is entitled to recover her damages, i. e., the rental value of the premises. [151] The judgment should, therefore, be reversed, with costs and judgment directed for the plaintiff, with costs. Dowling and Smith, JJ., concur; Clarke, P. J., and Merrell, J., dissent.