People on rel. Wilson v. Swayze

Clerke, J. Without waiting to examine whether Swayze has shown that she stands in the relation.of landlord to the relator, I do not think that she has sufficiently shown in her affidavit presented to the justice, that the relator had made any default in the payment of rent. She has only shown that the relator did not pay the taxes for several years. The lease provides for the payment of $27.50 per annum as rent; and in a [434] separate provision, there is a covenant for the discharge of taxes, &e., by the lessee. The second subdivision of section 28 of the act, allowing these summary proceedings (2 Rev. Stat., 513), applies only to cases of default in the payment of rent. It is clear that the covenant to pay taxes cannot be considered as part of the rent, because the taxes are not payable to the landlord, but to the public authoritiesand the landlord could not make a legal demand ■of the taxes, as required by the statute, if the same were a part ■of the rent. It also appears by the affidavit, that the landlord has paid the taxes, and thereby changed his demand against the tenant into a mere action of damages for breach of the covenant to pay the taxes;—if she has any remedy after such payment. Proceedings reversed with costs. Sutherland, P. J.,- and Ingraham, J., concurred.