Witt v. Mayor of New York — 28 N.Y. Super. Ct. 248

Majority

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Stillman Witt, plaintiff and appellant, vs. The Mayor, &c. of the city of New York, defendants and respondents.

Headnote

1. In the city of New York, a tenant who holds over, and remains in possession of premises leased to him at a certain rent, with the assent of the owner, after the expiration of the term, without any new agreement as to the rent, becomes a tenant from year to year, and liable for the rent, at the same.rate, up to the 1st of May next after the holding under such tenancy commenced.

2. Where defendants, who entered into possession of premises under a written lease, remained in possession from year to year, after the expiration of that lease, in May, 1861, until the 1st of May, 1863, with the assent of the owner, and, with the like assent, continued to occupy the premises for at least a week after the last mentioned date, without giving any notice to the lessor that they would not continue to occupy the premises during the whole of the year, commencing May 1, 1863 ¡ B.cW that they were liable for the rent up to the 1st of May, 1864.

8. Where a lease for a term of over two years, executed on behalf of the corporation of the city of New York by the comptroller, was good for two years, at least, of the term demised by it, as authorized and directed by an ordi

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nance of the common council of that city; Held that the entry of the corporation thereunder, their‘continued possession, and payment of the rent, were, together, sufficient to establish their acquiescence in, and ratification of, the contract so made by their agent and officer, as to its excess of the authority expressly conferred upon him by them.

4. A holding over by tenants is not justified by its necessity for the removal of their goods, although no more time be consumed in such removal than is necessary for that purpose. There is no rule of law, in this state, permitting a tenant to hold over for the purpose of removing his goods. On the contrary, it is provided, by statute, that in case a tenant shall continue in possession at all after the expiration of his term, the lessor may eject him and his goods by summary proceedings. Per Babboub, J.

5. One who has leased premises to the corporation of New York may recover of such corporation, as for waste, such damages as he has sustained by reason of injuries done to his building by them, or their officers or employees, in fitting the same for their own use while occupying them.

6. Such a claim does not depend, alone, upon any covenants in the lease, but exists independently of them, also, at common law.

(Before Babboub, Garvin and Jones, JJ.)

Heard December —, 1866;

decided--, 1867.

This was an action by a lessor for rent, and for damages for injuries done to or waste committed on the plaintiff’s building by the defendants.

In July, 1858, the common council of the defendants passed an ordinance directing the comptroller to lease from the proprietor the premises in question, being four floors, for the term of two years, at an annual rent not exceeding $5500. Another and distinct resolution in the same ordinance provided that the second floor, when leased, should be appropriated for the use and occupation of the street commissioner; but no provision was made in regard to the other three floors. The comptroller, thereupon, leased the premises at the rate of $5000 per year, for sometime over two years, terminating on the 1st of May, 1861. No further authority to lease, or to continue the possession of the premises, was directly given by the common council, nor was any lease, in fact, made for the year ending May 1, 1862. Bpt, in April, 1862, a new lease was executed on the part of the owner, and, in terms, on the part of the defendants, by their comptroller, for the year ending May 1,

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1863. Ueither this lease nor the first one contained any provision designating the purpose for which the premises, or any portion of'them, were to he occupied or used. The street commissioner, however, took possession of the whole of the premises, under the first lease, and continued to occupy the same until,after the 1st of May, 1863; and the rent was duly paid until the last mentioned date. In April, 1863, an ordinance was. adopted by both branches of the common council, directing the comptroller to lease a portion of the 'Broadway Bank building, for the use of the street department, which ordinance took effect, and became operative, on the 1st of May, 1863, by the return of the same to the common council by the mayor, without his objection or approval, on that day. After that ordinance was passed by the boards of aldermen and councilmen, and before it took effect, although the plaintiff, through his agent, substantially notified the comptroller that he' desired the corporation to retain the premises for another year, no agreement was made, nor could the plaintiff ascertain whether the defendants designed to keep them or not. On the 2d of May, 1863, the street commissioner informed the plaintiffj by letter, that the comptroller had leased other rooms for the use of the street department, and that he would immediately commence moving from the premises in question, and would endeavor to be out by the 9th of the month. The removal was commenced on the 1st of May, and completed about a week thereafter, some thirty or forty men being employed in making such transfer, due diligence being used therein. The plaintiff" claims that the defendants, by such holding over, after the expiration of their term, became liable for all the rent for the year ending the 1st of May, 1864.

On the trial the plaintiff’s counsel offered to prove that the premises were not left by the city street commissioner, (the occupant of the same,) in as good condition as when taken by the defendants, natural wear excepted; but that they had" been greatly injured and damaged by the depart

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ment, and offered to prove amount of damage. The defendants’ counsel objected to this evidence, on the ground that the covenants in the lease were not binding on the city, and the defendants were not liable for such damages. The court sustained the objection, an'd excluded the evidence, and the plaintiff’s counsel duly excepted. The plaintiff then rested. The defendants’ counsel then moved that the plaintiff be nonsuited, on the following grounds:

1st. That any occupation by the street commissioner of the premises in question was unauthorized by the defendants, and such occupation was not an occupation by the defendants.

2d. That the corporation, by reason of its artificial creation, are incapable of holding over, and cannot create a liability, except in a mode presented by its charter.

■ 3d. That the street commissioner, if an agent of the corporation, is such agent acting under special instructions, and with limited powers, from which he cannot depart, and of which the plaintiff is bound to take notice; and that if his occupation of the premises, after the, 1st of May, 1863, was not authorized or assented to by the defendants, then his holding over was not an occupation by the defendants.

4th. That the tenancy of the defendants of the premises in question, terminated on the 1st of May,. 1863, and that after the passage of the resolution of 1863, made by the common council, it was not in the power of the street commissioner, by any agreement or occupation of the premises, without the authority of the defendants, to render them liable, as tenants, for another year.

The court decided to hear all the evidence, and denied the motion, to which the defendants’ counsel excepted.

All the facts before stated were found by the judge. The judge’s conclusion of law was: That no relation of landlord and tenant existed between the parties after the 1st day of May, 1863, and that the defendants were not • liable for the rent of the premises during the year ending

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May 1, 1864, nor for any part of said year; and that the defendants must have judgment for their costs.

F. J. Fithian, for the appellant.

I. It is clearly within the corporate power of the municipality of New York to purchase or lease buildings, for the use of its legally constituted officers and agents. -

H. By the resolution of the common council, of May, 1858, the comptroller was duly authorized to take the first lease of the premises for the term of years, and under this duly authorized and valid lease the city entered and occupied. The failure or omission of the common council to provide any other buildings, or take any action with regard to the matter, at the expiration of this first lease, accompanied by the continued occupancy of the street commissioner, by and with the knowledge and consent of the council, (as evidenced by the payment of rent,) was a virtual continuance of the original authority to the comptroller, to continue leasing from time to time, not exceeding two years at a time. Hence the comptroller (Haws) was authorized by the authority, thus originally given and continued, to make the lease of May 1, 1862.

IH. But it is not material whether the comptroller had or had not original authority to take the lease of May 1, 1862. For it is well settled, that whatever act a municipal corporation has power to authorize in the' first instance, it may subsequently ratify, if done without authority. (Peterson v. The Mayor, &c. 17 N. Y. Rep. 449 . The People v. Flagg, Id. 584 . Long Island R. R. Co. v. Marquand, 6 N. Y. Leg. Obs. 160 . Taylor's Landlord and Tenant, § 128. 19 N. Y. Rep. 207 .) The authorities just cited show that occupancy by agents, and payment of rent by a corporation, is a ratification of the act of leasing.

IV". It follows, therefore, that the relation of landlord and tenant existed-between the parties hereto,.under and by virtue of the léase of May, 1862, (which was valid and binding,) that the covenants in that lease were binding

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upon, both parties, and that the city was, under it, tenant from year to year.

Y. But, even if the lease of 1862-3 was wholly void as a contract for want of authority or ratification, still there was a tenancy from “year to year,” and not merely at “will.”

1. If one enters under a void lease and pays rent, he is only tenant at will. (Taylor's Landlord, &c. § 60.) So if one enters under a parol lease, made by an agent without authority, and it is afterwards ratified by the landlord’s receiving rent, it is only a tenancy at will. But if he continues longer than a year, it becomes a tenancy from year to year, because the law does not favor tenancies at will. (McDowell v. Simpson, 3 Watts, 129 . McGaw v. Cameron, Id. 139 .)

2. So, though a parol lease for more than a year is void by the statute of frauds, yet if a person enter under one, he is tenant for a year and not at will. (Schuyler v. Leggett, 2 Cowen, 660. The People v. Richert, 8 id. 226 .)

3. Whether a tenant either enters, under a void or a valid lease, by parol or otherwise, or becomes tenant for years or at will when he enters, yet if he continues longer than a year, (in case of a void lease,) or hold over his term, (in case of a valid one,) he becomes tenant from year to year, • and not at will; and it is a continuous term from the first leasing. (Jackson v. Salmon, 4 Wend. 327 . Webber v. Shearman, 3 Hill, 547 . Taylor’s Landlord, &c. § 60, and authorities before cited. Webber v. Shearman, 6 Hill, 20 .) Under no circumstances, therefore, where there has been an entry under a valid lease, either for a year or a term of years, can such tenancy become a tenancy at will, except by a new agreement making it so. 1

4. In this case there is no dispute, and the court below has expressly so found, that the original entry in this case was under a valid lease for a term of years, pursuant, to a resolution of the common council of July, 1858; it follows, therefore, that whether the lease of May, 1862, was valid or

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void, there was, nevertheless, a tenancy from year to' year, by virtue of the original entry and holding.

VI. It follows, therefore, that if the defendants were such tenants, (although a municipal corporation,) they became subject to all the duties and obligations arising out of that relation, the same as a natural person, and the landlord acquired all the rights and remedies that he would have had against a natural person. It is no answer to say, that a corporation cannot wrongfully -hold over, hut that any holding over is the wrongful act of the agent.

1. The act of holding over is not in and of itself wrongful. The landlord may either elect so to treat it, and eject the tenant, or he may ratify the act and hold the tenant for another year. If the landlord should elect to treat it as a wrongful holding over, then the wrongful act of the agent or- officer is the act of the corporation; since a corporation is liable for the wrongful acts of its agents, in the performance of any act which the corporation had power to authorize. (2 Kent’s Com. 284. Angel & Ames on Corp. 250-330. Howell v. City of Buffalo, 15 N. Y. Rep. 512 .)

2. Clearly the city has power expressly to authorize officers to hold over, for that would be no more than an authority to accept a new lease. Summary proceedings, to recover possession, could not be taken against the officer, but must have been brought against the corporation. (Wiggin v. Woodruff, 16 Barb. 474 . Hill v. Stocking, 6 Hill, 314 .)

VH. A tenant from year to year, is bound to surrender up possession at the expiration of the year. If he does not, hut holds over for any time, the law gives the landlord the right to treat him as tenant for another year, and hold him to the relation with all its obligations. (Taylor’s Landlord and Tenant, §§ 524, 525. Conway v. Starkweather, 1 Denio, 113 . Hemphill v. Flynn, 2 Barr. 144.) The learned justice, at the trial, declared that before the landlord could elect to hold the tenant for another year, there must be a holding over for such a length of time as

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should evince an intention on the part of the tenant to continue on the terms of the original lease. This, it is submitted, is not the law.

1. The landlord and not the tenant has the election. The obligation or implied covenant of the tenant is, to surrender the possession on the day the year expires; if he violate that obligation, the law gives the landlord two remedies, viz: either to treat him as trespasser or force upon him, if necessary, the continuance of the relation of landlord and tenant for another year; the effect of the decision of the judge at circuit would be to give to the party who violates his contract the right, in some respects, to determine what should be the consequences of that violation ; he could hold over and be his own judge as to what should be the nature of the relations between him and his landlord, so as to compel the latter to treat him as a trespasser whether he will or not. The injured party always has the election to insist upon a tort, or waive it, and sue on an implied contract.

2. The authorities cited by the learned justice do not-sustain his position. One ( 1 Denio, 113 ,) is an authority in point for the contrary; that in 11 Wend. (616,) is still stronger, for that nolds that even after the landlord had suffered his tenant to hold over for three months and twelve days, he could elect to treat him as a trespasser, and eject him without notice to quit. The tenant can destroy the relation of landlord and tenant only in one way, viz. by surrendering the demised premises at the expiration of the lease; he cannot both hold on to the premise's and repudiate the relation or determine for himself what shall be the character of his holding.

3. Where a tenant holds over after the expiration of his term, he is subject to all the covenants of the expired lease which are applicable to his condition, (Frantz v. Wood, 2 Hill, S. Car. Rep. 367; More v. Brushly, 3 Ham. 294; Brewer v. Knapp, 1 Pick. 332 ; Bacon v. Brown, 9 Conn. Rep. 334 ;

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Dorrill v. Stevens, 4 McCord, 59 ; Phillips v. Monges, 4 Wharton, 226 ; De Yonge v. Buchanan, 10 Gill & John. 149;) upon the same principle that it does not lie in the mouth of the tenant to say what ishall be the terms of his holding, if he choose to hold over.

VI IT. The act of the city in keeping possession of the premises ten days after the expiration of the term or year, was a “ holding over ” on its part.

1. This is more in the nature of a fact than a legal propo- ' sition. The term ended on the first of May; the city remained in- possession after that day; the object or purpose for which it remained is wholly immaterial except upon the qu estion of intent. But if the intent of the ten ant has nothing whatever to do with the relation of the parties, the intent with which he holds over is not a subject of inquiry.

2. The question is, can a tenant, legally and without the consent of his landlord, hold over for any purpose or reason after the termination of a lease or tenancy, which ends on a day certain ? Justice Monbll held that a tenant may continue for such reasonable time as shall be necessary to remove his goods—his fixtures and “ implementsand having found as a fact that the time occupied in this case was not unreasonable, he discharged the tenant from all liability for rent, or “ other compensation.” Such is not the law, and it ought not to be. Its effect would be to give a legal sanction to the violation of a contract; it would indefinitely extend the terms of all leases, so .that they would not expire on a day certain agreed in the lease, but at such time as the tenant might find it reasonable to get out. Such extension would be against the will of the landlord and without any liability for rent or other compensation. Such holding over is either a trespass on the part of the tenant, or a right which he has. If the latter, then the landlord could not eject him by summary proceedings or otherwise, but must quietly sit by and see his property occupied against his will and without redress.

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3. A tenant for years, or from year to year, cannot keep possession of demised premises after his term expires for such time as shall be reasonable to remove his property.

(a.) The authorities cited do not sustain this position. Taylor says in his work on Landlord and Tenant, (§ 533,) that “ after the tenant has quit possession and his tenancy is ended, he has still a right to enter upon the land in order to remove his goods and utensilsfor which he cites 2 Blackstone, 147, and Ellis v. Paige, ( 1 Pick. 43 .) By reference to these authorities it will be seen, that they are both cases of a tenancy at will, determined by the will of the landlord, without any notice to quit, which was not required in tenancies at will. The right of the tenant in those cases to remove his property after the term expired was put on the express ground that the tenant could not know when his term was to expire.

(6.) The right of a tenant to take away “ implements ” or remove “ fixtures ” erected by him, after the termination of his lease is confined expressly to cases' where there is no certain time fixed for the termination of the lease, such as tenancies for life or at will, or it is dependent upon the happening of some contingent or uncertain event. (Taylor's Landlord and Ten. §§ 534, 536, &c. 2 Black. 145 .) The law is the same in regard to fixtures erected by the tenant. He must remove them before his term expires, or before he quits possession, or else they become the property of the landlord. (Taylor L. and T. § 551.) The tenant may, if he can, hold over long enough to get away his fixtures. In such case he saves his fixtures, not because he had a right to hold over, but because his right to the fixtures depends upon his severing them from the freehold before the landlord gets possession; but he subjects himself to all the consequences arising out of his decision to hold over, one of which is that the landlord may on his part elect to compel him to keep the premises for another year. (Gaffield v, Hapgood, 17 Pick. 192 . Shepard v. Spaulding, 4 Metc. 416 .)

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4. In this case it appears in evidence that the holding over was for the express purpose of enabling the tenant to remove fixtures which he had erected. It follows, therefore, that the judgment of the court below should be reversed. As a new trial could not change the facts, there should be judgment ordered for the plaintiff for the amount of a year’s rent, with costs.

IX. The court erred in finding as a fact that the defendant commenced moving on the first day of May; also in excluding evidence as to damage done to the buildings. (See above authorities, Point VII, sub. 3.)

Pichará 0’ dormán, for the respondents, defendants.

I. The only lease was that which was made between Wesley and the comptroller, by virtue of the resolution of the common council, which expired on the first May, 1862. The occupation of the premises subsequent thereto, and up to the first May, 1863, was by a parol understanding between the said parties without authorization by the common council; the rent for which period has been fully paid.

II. There existed no lease of the premises by authorization by the common council after the first May, 1863, or by parol, between the comptroller and the plaintiff, or between the street commissioner and the plaintiff Any lease of such premises for the uses of the street department would be void unless authorized by the common council, duly approved.

HI. But it appears that prior to the first May, 1863, the common council did pass a resolution authorizing and directing their comptroller to hire another building for the uses of the street commissioner’s department, and of which resolution the plaintiff by his agent had due notice.

IV. That the street commissioner did not intend to occupy the premises after the first May, 1863, is evident from the fact disclosed by the testimony that he commenced moving therefrom on that day, employing the requisite

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force and using due diligence, which was notice in itself of the termination of any tenancy.

V. The defendants, a municipal corporation, are incapable of holding over, and cannot create a pecuniary liability except in the manner prescribed by its charter. There are no other legal questions presented in this case, and the respondents respectfully insist that the judgment below should be affirmed, with costs.

In considering the question before us, we may assume, at the outset, that the corporation of the city of New York is subject to precisely the same legal liabilities as any other corporation or individual would be, in a case of like character with this, unless specially exempted therefrom by some statute; and I find no such statutory exemption.

Although the comptroller was not expressly empowered by an ordinance of the common council to execute the last lease, the remaining in possession, with the payment of the rent by the defendants during and for the entire term covered by such lease, was probably a ratification of that act of their officer. (Story on Agency, § 253, et seq. and notes.) It is not necessary, however, to consume a moment upon that question; for even if such second lease was invalid, the execution of the first lease, for two years, at least, of the period covered by it, was authorized and directed by ordinance; and the entry of the defendants thereunder, and their continued possession, with the payment of the rent of the premises, constituted sufficient evidence to establish the fact that they thus acquiesced in and ratified the contract so made by their agent and officer, in so far as the same exceeded the authority which they had expressly conferred upon him. (See Story on Agency, §§ 253 to 260, and cases there cited; 1 Livermore on Agency, 50; Chitty on Bills, 32, and Am. n. 1.)

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Simply, then, the case is this: The defendants entered under a written lease, and remained in possession, from year to year, after the expiration of that lease in May, 1861, until the first of May, 1863, with the assent of the plaintiff, and, with like assent, continued to occupy the premises for, at least, a week after the" last mentioned date. It may also be added that the defendants do not pretend that any notice whatever was given by them to the plaintiff, prior to the 2d of May, 1863; and, in point of fact, no notice was ever given to him by them, or by any one on their behalf, that the corporation would not continue to occupy the premises during the whole of the year ending May 1, 1864, nor had he any réason to suppose they designed to relinquish the possession before that time. It is true that the street commissioner informed the plaintiff, on the second of May, that the street department would vacate the apartments on the ninth; but as the comptroller had not been directed to lease the premises for the street department, and, so far as appears, had not, in fact, done so, the notice so given by the commissioner d.id not even tend to inform the owner. that the defendants would not continue to occupy the rooms by some of their departments or officers, as they had a right to do, during the entire year upon which they had then entered. So, too, and for the same reason, the resolution of the common ■council directing the leasing of the Broadway'bank building for the use of the street department, gave no notice to the plaintiff of an intention on the part of the defendants to abandon the possession of the premises. It merely informed him, if he saw it after it "took effect, that they would not be occupied by the street department; even if it can be inferred from the resolution that such department was not to occupy its old as well as the new rooms. Indeed, the absence of a. provision in that resolution directing the comptroller to terminate the .occupancy of these premises,

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might well have induced the plaintiff to believe the common council designed to continue such possession. It is sufficient, however, to say that the defendants held over and remained in possession of the premises, with the assent of the owner, after the expiration of their term; that constituted a tenancy from year to year, and rendered the defendants liable for the rent up to the 1st of May, 1864. (See 1 R. S. 744, § 1; Doe v. Bell, 5 T. R. 472; Abeel v. Radcliff, 15 John. 505 ; Evertson v. Sawyer, 2 Wend. 507 ; Bradley v. Covel, 4 Cowen, 349; Osgood v. Dewey, 13 John. 240 ; Conway v. Starkweather, 1 Denio, 113 .)

It is no valid excuse for the holding over to say that the defendants were engaged in removing their goods, and consumed no more time in such removal than was necessary for that purpose. Without enlarging upon the evils to which incoming tenants, as well as landlords, would be subjected by a rule of law that should permit such holding over, it is enough to say that no such rule exists in this state; but, on the contrary, the statute provides, in effect, that, in case a tenant shall continue in possession a single hour after the expiration of his term, the landlord may eject him and his goods by a prompt and summary proceeding. (2 R. S. 513, § 28, et seq.)

The learned justice erred, therefore, in holding that the defendants were not liable for the rent of the premises, as fixed by the lease, for the year ending May 1, 1864.

We are also of opinion that the court erred in excluding the evidence offered by the plaintiff to establish the fact that the premises were injured by the defendants or their employees while in possession. The claim of the plaintiff does not depend, alone, upon the covenant in the lease, but rests, also, and independently, upon his common law right to recover, as for waste, such damages as he has sustained by reason of the injury done to his building by the defendants, through their officers or employees in the street department in fitting the same for their own use, while

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occupying the premises. There can be no good reason why the defendants are any less liable for such injuries than a bank, an insurance company, or an individual tenant would be.

The judgment should be reversed, with costs, and a new trial granted.

Garvin and Jones, JJ. concurred.

Cases cited

Jackson ex dem. Wood v. Salmon 4 Wend. 327 N.Y. Sup. Ct. p. 253
Wiggin v. Woodruff 16 Barb. 474 N.Y. Sup. Ct. 1853-10-03 p. 254
Evertsen v. Sawyer 2 Wend. 507 N.Y. Sup. Ct. p. 261