MacKellar v. Sigler

Loew, J. As there is nothing in the evidence to show that, in the agreement for the letting and hire of the premises in question, the landlord reserved the right to relet them, on the tenant’s account, in case they became vacant daring the term; and as he did not even notify the tenant of his intention so to do, it is quite plain that when he let the house to another person, it could not have been on behalf of the defendant, and that the tenancy became thereby determined, and the defendant from thenceforth discharged from his obligations as tenant (Walls agt. Atcheson, 3 Bing., 462; Murray agt. Shave, 2 Duer, 183; Hegeman agt. McArthur, 1 E. D. Smith, 147). But this act of the plaintiff did not release the defendant from liability for any rent which may have previously accrued and become due. And as, by the terms of the agreement, the rent reserved was to be paid monthly in advance, the question arises whether or not the plaintiff, can recover for the months of February and March. [22] So far as the rent for the month of February is concerned, I think he can. This, according to the contract, became due on the first day of that month; and although some of the acts hereinafter mentioned occurred before the expiration of said month, still, as the rent had previous thereto become due and payable, they constituted no defense to plaintiff’s right of action therefor (Giles agt. Comstock, 4 N. Y., 270). But I entertain no doubt that they were sufficient in law to bar his claim for rent for the month of March. From the evidence returned to us it seems that the plaintiff not only retained the key of the premises, but he testified that he “ went into the house to see what condition it was in <md to make repairs.” It further appears, from his own testimony, that he entered the house within a day or two after the tenant had abandoned it; that he had a carpenter at work there three days in February, and again in the latter part of March; and also that he put in a new mantel, and had the walls in the house papered. Mow, although the plaintiff refused to accept the surrender of the premises which the defendant offered to make, just prior to the time when the latter vacated them, yet these subsequent acts, on the part of the plaintiff, were so entirely inconsistent with the relation of landlord and tenant, which had subsisted between them, as to preclude the idea of a continuance thereof. In the absence of a stipulation to that effect, in the agreement creating the tenancy, the landlord has no right, except, perhaps, where it may be requisite to prevent waste, to enter the demised premises during the term, without the consent of his tenant, to make repairs; and if he does, he will be deemed a trespasser, and become liable as such (Barker agt. Barker, 3 C. & P., 558; and see Shannon agt. Burr, 1 Hilt., 39). As the plaintiff would unquestionably have been a trespasser if he had done the acts in question against the will of the defendant, it seems plain that they are, under the circum [23] stances of this case, equivalent to an agreement on his part to resume possession, and amount to a surrender by operation of law. It is clear to my mind, therefore, that by, in effect, taking possession of the premises, after they had been abandoned by the defendant, and making the repairs and alterations referred to, the plaintiff rescinded the agreement and terminated the relation of landlord and tenant, and thereby discharged the ■defendant from all liability to pay rent for the month of March. The judgment of the justice should be reduced to thirty-seven dollars and fifty cents, being the rent for the month of February, and affirmed for that sum, with costs of the court below, and reversed as to the residue, without costs of appeal to either party. Daly, Ch. J., and Robinson, J., concurred.