Cronin v. Epstein

No specific time was fixed for the completion of the repairs by the landlord. There was, therefore, no breach of covenant on his part. The rent became due and payable under the lease, and was not paid. A tender was made; but, to be available, it must be kept good at all times. The debt is not paid by the tender. There was nothing in the case which required its submission to the jury. The direction in favor of the plaintiff was right, and the judgment must be affirmed, with costs.

(concurring.) I concur in the decision reached by my brethren. The lease is a grant of the premises for a period, and the rent is annexed thereto as an incident. While in the quasi equitable action for “use and occupation” a tenant is not answerable unless he has had some beneficial enjoyment of the property, the action of covenant upon a sealed lease for rent does not depend upon occupation or enjoyment of the premises being gained by the lessee. Gilhooly v. Washington, 4 N. Y. 217, 219; Jaffe v. Harteau, 56 N. Y. 398,401. And this is so, though, at the day fixed, tenant demands the possession, and landlord refuses to deliver up possession; for the lessee’s remedy, in a proper case, would only be a counter-claim or cross-suit upon landlord’s covenants, express or implied, to give due possession, to reconstruct the premises, and the like. Etheridge v. Osborn, 12 Wend. 529; Vanderpoel v. Smith, 4 Abb. Dec. 464,—Davies, J., holding: “The omission of a landlord to perform covenants on his part [i. e., in refusing to place or let tenant into possession of that which, by the agreement of the parties, he ought to have enjoyed] is no bar to such lessor’s claim for rent. ” See, also, Edgerton v. Page, 20 N. Y. 285, and Trull v. Granger, 8 N. Y. 115, 118, that the “rent” must be paid, and tenant can only insist on cross-damages.

The tender before suit is no defense, as the answer fails to plead payment into court. Becker v Boon, 61 N. Y. 317. The surety’s undertaking was absolute to pay in case of lessee’s default, and without requiring notice; the rent was payable monthly in advance; and consequently, for above reasons, the judgment against defendant as surety was right, and must be affirmed.