Gluck v. Elkan

Dickinson, J. One of the covenants in the lease of the premises to the defendant, and a condition upon which the lease was made, was that the lessee should at all times keep a certain stairway and area — a part of the leased premises — open, clean, and free irons rubbish. This the defendant did not do. For several months after the defendant’s default in this, the plaintiff received the rent for the premises, which was payable monthly in advance. He so received the rent for the month of April, 1886, on the first day of that month. The lease was to terminate May 1,1886, unless it should be renewed or extended in accordance with the right expressly reserved to the lessee. During the month of April, 1886, the defendant further violated, or continued to violate, the prescribed condition, and neglected and refused, when requested by the plaintiff, to keep the stairway and area open and clean. The plaintiff, on the tenth day of that month, notified the defendant that, on account of the failure of the defendant to perform the conditions of the lease, he should not extend the same.- The condition in question was of a continuing nature. The receiving of rent from month to month would be effectual as a waiver for the past breach of it, but that would not relieve the tenant from the duty of performance in the future. The default and refusal of the defendant in this respect, during the month of April, after the last rent had been paid, justified the plaintiff in terminating the lease, and in refusing to extend it, as otherwise he might perhaps have been required to do. Taylor, Landl. & Ten. (7th Ed.) § 500; Block v. Ebner, 54 Ind. 544; Farwell v. Easton, 63 Mo. 446; Doe v. Gladwin, 6 Q. B. (51 E. C. L.) 953; Doe v. Woodbridge, 9 Barn. & C. 376. As to the materiality of the condition, it is enough that the parties have made this express agreement. It was not necessary, to authorize this proceeding, that the defendant be shown to have maintained his possession “by force and strong, [82] hand.” The proceeding is under Gen. St. 1878, c. 84, § 11. It was enough that the defendant held the premises contrary to the conditions of his lease. Order affirmed.