CONGER v. DURYEE

CONGER v. DURYEE. [Reversing 24 Hun, 617.] N. Y. Court of Appeals ; December, 1882. Action to Re-enter Leased Premises.—Lessee’s Covenant to Pay Taxes.—Waiver of Forfeiture by Accepting Rent.— “ Continuing Cause of Forfeiture.” Where a lease contains a covenant by the lessee to pay taxes, and pro- . vides for forfeiture in case of non-payment, the acceptance o"f rent by the landlord, after default in paying the taxes for two preceding years, and with knowledge thereof, is a waiver of the. forfeiture thereby incurred, and the lessee’s continued failure to pay the taxes for those years does not give the landlord a right to re-enter. Such acceptance of the rent is an affirmance of the lease ; no past breach of the covenant can be used upon which to hinge a right of re-entry, but such right can again arise only in case of a new and positive breach, occurring subsequent to such affirmance. But the landlord does not, by accepting the rent, waive his claim against the lessee for the taxes ; the latter is still liable to an action upon his covenant to pay. Appeal from a judgment of the general term of the supreme court in the first department, affirming a judgment, entered upon a verdict for the plaintiffs, directed by- the court. The action was to recover possession of leased premises on the ground of a forfeiture of the lease, which contained a covenant by the lessee to pay taxes, and provided for forfeiture of the lease in case of non-payment thereof. Id ivas admitted by the defendant on the trial that the taxes of 1875 and 1876 were unpaid at the time of the commencement of the action, and that, on August 30, 1877, before the action was begun, the plaintiffs paid the taxes of 1874, and fhat the amount of those taxes had not been repaid to them. After the taxes of 1875 and 1876 were known to be in arrears and unpaid, the plaintiffs received from the defendant rent for the premises, which accrued after default in paying the taxes. The supreme court held that the obligation to pay the taxes was a continuing one, and that the failure to pay the taxes for those years within a reasonable time after the rent was received, was, under the covenant, a new forfeiture for such non-payment (Reported below, 24 Hun, 617). Carlisle Norwood, Jr., for defendant, appellant. James A. Seaman, for plaintiffs, respondents. For the recent cases on the tenant’s covenant to pay taxes, see Taylor's Landl. & T. 7th ed. by Willard ; McAdam's Landl. & T. 161 ; Gallup v. Albany Rw. Co., 7 Lans. 471 ; Muller v. Earl, 35 Super. Ct. (J. & S.) 461 ; Whitman v. Nicol, 38 Id. 528. [MAJORITY — Tracy, J.] Tracy, J. The question to be determined in this case is whether the plaintiffs at the time of the commencement of this action had a right of re-entry under the lease, or whether that right had befen waived by the acceptance of the rent falling due May 1, 1877, which accrued subsequent to the alleged forfeiture for the non-payment of the taxes. “ Where a right of re-entry is reserved for breach of some condition therein, or for a failure by the lessee to keep and perform the covenants to be kept and performed by him, it is well settled that the lease is voidable only, and may be affirmed by the landlord notwithstanding the breach” (Jackson v. Andrew, 18 Johns. 431). “If the landlord with his knowledge of the breach, accepts payment of rent which accrued subsequent to the breach, he waives the forfeiture, and again consents to and establishes the tenancy which it was competent for him to have avoided, and thereby precludes himself from taking advantage of the tenant’s misconduct” (Taylor Landl. & T. § 497; Clark v. Cummings, 5 Barb. 339 ; Croft v. Lumley, E. B. & E. 1069 ; Boggs v. Black, 1 Binn. 333; Goodright v. Davids, Cowp. 804; Marsh v. Curteys, Cro. Eliz. 528; Harvey v. Oswald, Id. 553, 572). In Taylor's Landlord and Tenant it is said : “If however the landlord, after a forfeiture has been incurred, proceeds to make a distress for rent previously due, he thereby affirms the possession of the tenant and waives his right of re-entering, because he cannot distrain' for rent unless the relation of landlord and tenant, and consequently the lease, exists ” (Zouch v. Wittingale, 1 H. Bl. 311; Jackson v. Allen, 3 Cow. 230). And if he brings an ejectment for the forfeiture he can only recover rent due after the time of the demise laid in his declaration in the action for mesne profits ; for by- bringing an ejectment for the forfeiture he has chosen to treat the lessee and his sub-tenants as trespassers from that time, and the claim to accruing rent is wholly inconsistent with his proceeding at law to enforce a forfeiture” (Taylor Landl. & T. § 499). 'Where a landlord elects to proceed at law against a tenant to' enforce a forfeiture of the lease for non-performance of its conditions, or for a violation of a covenant, he cannot, during the pendency of the suit at law against the tenant, have relief in equity against him as upon a subsisting tenancy (Stuyvesant v. Davies, 9 Paige, 427 ; Linden v. Hepburn, 3 Sandf. 668). If the condition or covenant is single, imposing but a single obligation, it is wholly discharged by a single waiver after breach (Taylor Landl. & T. § 287). It has been held that where the covenant or condition imposes a single obligation, and must be taken wholly, if at all, the condition itself is discharged as much as by a license (1 Smith’s Lead. Cas. 20 a ; Lloyd v. Crispy, 5 Taunt. 249; McGlyn v. Moore, 25 Cal. 384). A single condition dispensed with is dispensed with forever. Receiving rent after forfeiture waives the forfeiture and affirms the lease freed from the condition ; thus, where the condition is that the tenant shall not assign the lease, and he does assign it, and the landlord, with knowledge of the assignment, accepts the rent, he affirms the lease without its condition, and the assignee of the tenant may assign (Murray v. Harway, 56 N. Y. 327). So, with the condition that the tenant shall not underlet, and he does underlet a portion of the premises, and the landlord with a knowledge of this fact receives rent, he affirms the lease with the condition modified to the extent that the tenant has underlet at the time of affirming the lease (Murray v. Harway, supra; Lloyd v. Crispy, supra; Collins v. Hasbrouck, 56 N. Y. 157). But it is said that where there is a continuing cause of forfeiture the landlord will not be precluded from taking advantage of it by receiving rent after the breach was originally committed. So where the forfeiture was incurred by using two rooms in a house in a manner prohibited by the lease, such user was held to be a continuing breach, and that the landlord might recover after receiving rent, provided the user continued after such receipt (Taylor Landl. & T.§ 500; Doe v. Woodbridge, 9 B. & C. 376). And where there was a covenant on the part of the lessee that he would plant a certain number of apple trees upon a farm and would replace those that should decay or get destroyed, so as always to keep up the given number during the term, there was a continuing covenant, and if the landlord should collect rent after he knew there was a breach of such a covenant, it would not waive the forfeiture nor prevent the landlord from re-entering, if, subsequent to the payment of such rent, there should still be a failure on the part of the tenant to perform his engagement (Bleecker v. Smith, 13 Wend. 53). We think the phrase “a continuing cause of forfeiture,” found in some of the reported cases, is not strictly accurate and is misleading. Leases may contain continuing covenants and continuing conditions, that is to say, covenants and conditions which are to continue throughout the term, which being violated by the lessee at any time during the term, give to the landlord under the re-entry clause a right to terminate the lease. But any breach of the condition or covenant creating a forfeiture must consist of some specific act or omission, which act or omission is the cause of the forfeiture, and continues only until the landlord shall elect whether to affirm or disaffirm the lease. When committed by the lessee, if the lease gives the landlord the right to re-enter for such breach he has a right of election. He may elect to terminate the lease because of the breach, or he may elect to affirm it notwithstanding the breach. If he elects to terminate it, the relation of landlord and tenant ceases. He is not entitled to claim or demand rent, for rent flows from the lease, and there is no lease. If he elects to affirm, the affirmance is equivalent to a new lease with the same continuing covenants and conditions. No past breach can be used upon which to hinge a right of re-entry. Such right can again arise only in case of a new and positive breach of the covenants or conditions of the lease occurring subsequent to its affirmance. In the case where the forfeiture was incurred by using two rooms in a house in a manner prohibited by the lease, the landlord having accepted rent and afterward bringing an action for a breach, would be estopped from proving the default of the tenant prior to the acceptance of the rent, and would be compelled to rely exclusively upon the evidence of acts constituting a breach occurring subsequent to the acceptance of such rent. And so in the case of the agreement on the part of the lessee to plant and keep upon the farm a given number of apple trees during the term, the coui’t say: “The lessee was bound during the continuance of his term to preserve the number of apple trees, and the lessor, is at liberty at any time to enforce forfeiture when a default exists or accrues after the payment of rent. The acceptance of rent waives all forfeiture up to that time. The lessor cannot show any default of the lessee previous to the payment of the rent.” So, in the case of a breach of a covenant to repair, acceptance of rents estops the landlord from showing a failure to repair prior to such acceptance ; but the covenant in the lease operates from the day of its renewal, and the landlord is at liberty to show that since such renewal, there has been a failure to perform the covenant. In none of these cases is it strictly accurate to say that there is a “ continuing cause of forfeiture.” The covenants continue, but the particular breach which is the'cause of forfeiture does not. Applying this principle to the covenant in question, it is apparent that the acceptance of the rent, with knowledge of tire nonpayment of the taxes, waived the forfeiture and affirmed the lease. The plaintiffs did not thereby release their claim against the lessee for the taxes ; he is still liable in an action upon his covenant to pay; but they did waive their right to re enter for such non-payment, and as to such breach the lease stands as it would have stood had it contained a covenant to pay without the right to re-enter for non-payment. The covenant to pay taxes operates only from the affirmance of the lease. Reading the lease as from the date of its affirmance by the acceptance of rent, the covenant of the lessee is that he “ will pay and discharge all the taxes, etc., which shall or may, at any time or times within said term, be laid upon the premises.” There is no covenant to pay back taxes or back assessments. For these reasons we think the plaintiffs are not entitled to maintain their action. As this leads to a reversal, it is unnecessary to consider the questions raised by the defendant’s supplemental answer. Judgment should be reversed and a new trial granted, costs to abide the event. All the judges concurred except Earl, J., dissenting. Judgment accordingly. S. C., 15 Am. R. 407; reversing 1 Sup'm. Ct. (T. & C.) 36. See also Graham v. Baker, 7 Weekly Dig. 82.