Luckey v. Frantzkee

By the pleadings, the parties appear to have taken issue upon an alleged eviction occasioned by the owner of the adjoining lot pulling down a wall belonging to him, and which he had a right to remove; but by the evidence it appears that the wall so pulled down did not belong to the owner of the adjoining lot, but to the owner of the house No. 44 Cortlandt street, for which this rent accrued, and which such owner had leased to the plaintiff prior to such removal. No objection on the trial was made on this ground, and the case appears to have been tried on the merits, without reference to the pleadings.

It must, therefore, be disposed of in the same manner on this appeal. By the evidence, it appears that the wall taken down was in reality the wall of the adjoining house, No. 42, and that the house in controversy had no wall on that side of the building, except one of studs filled in with brick, and that the beams of No. 44 were not inserted in the wall taken down. That the ground on which the wall stood, and, of course, the wall itself, was the property of Mr. Hone, the owner of No. 44 Cortlandt street, that he assented to its being taken down, and the owner of No. 42 Cortlandt street put up a new wall for the house No. 44, but there is nothing in the case showing any act or assent of the plaintiff to any thing done in regard to the wall.

The questions before us are on exceptions to the judge’s charge, and to his refusal to charge as requested by defendant’s counsel.

Upon both points the same question arises, viz.: Did the consent of the chief landlord or owner of the wall, to its removal, operate as an eviction by the plaintiff, and suspend the rent ? The *52judge charged the jury, that the acts of Mr. Hone, the owner, even if he consented to the removal of the wall, could not affect the plaintiff’s right to recover, if the plaintiff did not participate in such removal, and refused to charge that such assent on the part of Hone suspended the rent.

The case cited by defendant’s counsel from 1 Starkie, 94, was of a different character. There the plaintiff, being the owner or chief landlord, interfered with the tenants of the defendant in such a manner as to cause one of them to leave the premises, and Lord Ellenborough held, that such interference by him was an eviction of his tenant, and suspended the rent. This is upon the principle universally admitted, that any interference by the landlord with the possession of his tenant, by which the tenant is deprived of his premises, or any part of it, suspends the rent. Several cases are referred to by Judge Nelson, in Lawrence v. French, 25 Wend. 443, establishing this rule. All of them, however, are cases where the landlord interfered with the possession of the tenant or sub-tenant, and the question arose between the landlord and his immediate tenant. But I have been able to find no case, and none has been cited by the defendant’s counsel, in which it has ever been held, that an interference by the owner of premises with the possession of the under tenant, without right, constituted a defence to a claim for rent made against such under tenant by the intermediate landlord.

The rule is stated frequently in the books, that if the lord enter wrongfully upon part of the premises, the rent is suspended, but this I understand to be the rent as between him and his tenant. An interference by the owner or chief landlord with the possession of the sub-tenant is nothing more than a trespass, for which an action is maintainable. To hold an intermediate landlord responsible for such acts would, in many cases, work gross injustice. If the sub-tenant, in consequence of such interference, leaves the premises, then, under the case in 1 Starkie, referred to, I consider the chief landlord could not recover rent of his lessee ; but this is the extent of the rule, and no case, I think, can be found extending the rule *53any further. An intermediate landlord often increases the value of the demised premises by buildings, so that while the ground rent is trifling that is paid to the owner of the land, the rent paid by the sub-tenant would be much increased. There would be no equity or justice in holding such intermediate landlord deprived of his claim for rent, because his landlord had committed a trespass dn the sub-tenant’s possession, while all he could recover from such owner would be limited to the amount of rent he was to pay for the land. We are not without some authority, however, on this point. In 2d Wend. 563, in the note there is cited the case of Lansing v. Van Alstyne, which seems to decide this very point. One plea in that case was, that one Klork, claiming to be an owner of part of the premises, entered upon the possession of the tenant, (the defendant,) with the privity and consent of the plaintiff, and expelled the defendant from his possession. In reference to this plea, Ch. J. Savage says: “ This plea is bad for another cause. It states a forcible expulsion by Klork, with the privity and consent of Lansing (plaintiff.) Surely Lansing’s consent amounted to nothing. He had no authority to consent or dissent. Had the expulsion been by the plaintiff, or by those persons as his servants, or by his direction, a different question would have been presented.” The ruling of the judge on the trial was consistent with the views here expressed, and no error was there committed of which the defendant can complain.

The judgment of the special term must be affirmed.