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ourselves supported by what was said in Fairfield County Bank v. Taylor, 60 Conn. 11, 22 A. 441, 13 L. R. A. 767; Matter of Peck, 88 Conn. 447, 91 A. 274; Boston Bar Ass'n v. Casey, 211 Mass. 187, 97 N. E. 751, 39 L. R. A. (N. S.) 116, Ann. Cas. 1913A, 1226; Matter of Randall, 11 Allen, 473; and Brooks v. Fleming, 6 Baxt. (Tenn.) 331.

These views lead to a dismissal of the appeal.

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Isham Henderson, of New York City, for respondent.

ANDREWS, J. On October 14, 1916, the plaintiff leased to the defendant for a terra expiring on October 1, 1921, a dwelling house in New York City at an annual rental of $1,200. The lease contained covenants against underletting and against alterations of the premises without the written consent of the landlord, and provided for re-entry should such covenants be violated. Without consent the tenant did sublet a portion of the house in question and did make alterations therein. Learning of these facts on November 4, 1920, the plaintiff notified the defendant that she canceled the lease and demanded possession of the premises; no rent thereafter being accepted or paid. July 1, 1921, this action in equity was begun. As relief it demands that the defend

On

(Court of Appeals of New York. March 31, ant be enjoined from further violating the

1925.)

covenants of the lease, that the lease be canceled, and that he be required to surren 1. Landlord and tenant 144-Landlord, who der the premises and pay resulting damages. canceled lease, cannot recover in action With this action pending the tenant re against tenant to restrain breach of cove-mained in possession until May 23, 1922, when he surrendered such possession to the landlord.

nants.

An action in equity by a landlord against a tenant, to restrain tenant from violating covenant against underletting or alteration of premises, implies a continuance of the lease, and not its cancellation and re-entry by landlord, and where landlord canceled lease he cannot recover.

2. Landlord and tenant

144-Landlord not entitled to damages from tenant withholding possession of premises.

Since, under Laws 1921, c. 199, § 10, a landlord could not maintain an action to recover possession of premises because tenant breached certain covenants, court could not award landlord damages under Civil Practice Act, § 1011, because tenant withheld possession of the premises, but, if landlord desires to recover rent unpaid, his remedy is under various emergency rent laws of 1920.

The action came on for trial in December, 1922, and resulted in a dismissal of the complaint. The Appellate Division, however, takes a different view. Finding, as it might do under the evidence, that the covenants tiff was entitled to possession of the properwere in fact violated, it holds that the plainty from November 4, 1920; that she may recover damages, because possession was withheld from that date to May 23, 1922; that the fair rental value at the rate of $2,500 a year during that time was $3,882-and awards her that sum as "the mesne damages by reason of the refusal of said defendant to surrender said premises" between the two dates.

[1] At the time this lease was executed the

Appeal from Supreme Court, Appellate Di- lessor had three possible causes of action in vision, First Department.

Action by Florence B. Symonds against William J. Hurlbut. From a judgment of the Appellate Division (208 App. Div. 147, 203 N. Y. S. 223), reversing on the law and facts a judgment of the Special Term, which dismissed the complaint on the merits, and directing judgment for the plaintiff, defendant appeals. Reversed, and judgment of Special Term affirmed.

See, also, 239 N. Y. 624, 147 N. E. 222.

S. Edward Ginsburg, Emanuel Morganlander and Harry Saks Hechheimer, all of New York City, for appellant.

the Supreme Court for the breach of the covenants in question: (1) An action at law for damages so caused. Such damages here are neither alleged, proved nor found. (2) An action in equity to restrain their violation. Steward v. Winters, 4 Sandf. Ch. 587. Such an action implies a continuance of the lease, not its cancellation and re-entry by the lessor. The finding is that the lease in question was canceled on November 4, 1920. Therefore, no recovery is possible under this theory. (3) An action to recover possession of the land.

[2] This is an action at law involving an election to cancel the lease. It involves &

(147 N.E.)

claim wholly inconsistent with the right to enforce the covenants by injunction. In such an action the value of the use and occupation of the land might have been recovered as damages. Code Civ. Proc. § 1531, now Civ. Prac. Act, § 1011. They would be based upon the finding that the plaintiff had been deprived of the possession to which he was entitled. But at the time when this action was begun and tried no such proceeding by a landlord against his tenant, occupying a dwelling house in the city of New York, was possible. It was expressly forbidden by statute. Laws 1921, c. 199, § 10. Because so prohibited, it is quite true that the plaintiff has no adequate remedy at law to recover possession by reason of the wrongs of which he complains. If this were sufficient to permit a resort to equity, the statute would have little effect. As the court may not award the plaintiff possession in this action, neither may it award her damages because possession is withheld. Should she desire to recover rent unpaid, her remedy is under the various emergency rent laws of 1920.

Our conclusion is that the judgment rendered is not supported by the findings. It should therefore be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, and LEHMAN, JJ.,

concur.

Judgment reversed, etc.

(240 N. Y. 99)

In re O'DONNELL.

tion results so as to breach covenant of quiet enjoyment; there being an ouster under old title, though possession is continued under new. 4. Life estates 25-Attornment by life ten

ant's lessee to remainderman held eviction.

Payment of rent by lessee on death of life tenant to remainderman, in obedience to demand, held attornment to superior title and an eviction, so as to breach covenant of quiet enjoyment, notwithstanding Real Property Law, § 224, making attornment to a stranger ineffective, except in specified cases. 5. Landlord and tenant

130(4)-Continued

possession after eviction will reduce damages for breach of covenant.

Continued possession by lessee after eviction, though only as tenant at will of holder of superior title, may be considered in reduction of damages, for breach of covenant of quiet enjoyment, but lessee is under no duty to hold on new terms.

6. Landlord and tenant 56(2)-Attornment to claimant of paramount title creates new tenancy.

Although under Real Prop. Law, §§ 223 and 248, attornment to lessor's grantee has become idle ceremony, in that consent of tenant is not required to grant of reversion, and grantees have same remedy for covenants broken as grantor would have had if reversion had remained in him, it still operates as acknowledgment of holding under claimant of title paramount, and creates a new tenancy.

7. Life estates 25-Attornment of lessee of life tenant held not accepted for period of years.

Where, on death of life tenant, agent of remainderman requested lessee for term of years to pay rent to remainderman until further notice, and, upon notice of raise in rent given within six months, remainderman disclaimed recognition of life tenant's lease, and lessee ac

(Court of Appeals of New York. March 31, quiesced and surrendered premises, held that

1925.)

1. Life estates 25-Lease by life tenant extinguished by death.

there was no acceptance of attornment for period of years and no continuance of the term, so as to prevent liability for breach of covenant of quiet enjoyment.

Death of life tenant extinguishes unexpired 8. Life estates 25-Life tenant's lessee en

term for years granted by him.

2. Life estates 25-Life tenant's lessee, continuing possession without consent after lessor's death, trespasser.

Under Real Property Law, § 530, as added by Laws 1920, c. 930, § 1, and Code Civ. Proc. § 1664, lessee from life tenant becomes trespasser, on continuing in possession after death of his lessor without express consent of person immediately entitled.

3. Landlord and tenant 130(2)-Eviction by valid attornment to claim of title paramount, breach of covenant of quiet enjoyment.

Where occupant has submitted by valid attornment to claim by title paramount, an evic

titled to vacate on termination of license under attornment to remainderman.

Where lessee, on death of life tenant, attorned to remainderman securing a temporary license, at most under Real Property Law, § 232, and remainderman afterwards repudiated lease, lessee was entitled to surrender possession and stand on breach of covenant for quiet enjoyment by life tenant.

9. Life estates 25-Damage to lessee for breach of covenant, difference between rent and value.

Damage for breach of covenant of quiet enjoyment, occasioned by death of life tenant and proper surrender of possession by his lessee, was difference between rent and value.

10. Landlord and tenant 130(3) - Lessor | ed it. When June arrived, the lessee tenhas burden of proving mitigating circum- dered its check for $50, paying at the old stances. rate. This the owner returned, insisting that more was due. The result was that nothing was paid that month, or in the two succeeding months, July and August. On August 22d the lessee moved away its goods and

Burden is on lessor or his representative to show circumstances mitigating damages naturally attaching to breach of covenant of quiet enjoyment.

Appeal from Supreme Court, Appellate chattels, and abandoned possession. A week Division, Second Department.

later the owner sued for the unpaid rents, but at the rate of $50 only. She took the In the matter of the petition of John J. position then, as affidavits filed in connection O'Donnell to settle his account as executor with a bit of particulars show, that in acof Michael E. O'Donnell, deceased. From cepting rent for 6 months she had created a order of Appellate Division (208 App. Div. tenancy under the statute (Real Prop. Law, 374, 203 N. Y. S. 882), reversing a decree of 232) that would last until the following the Surrogate (121 Misc. Rep. 496, 201 N. Y. October, but no longer. The rent so computSupp. 463), and disallowing a claim established was paid, and the action discontinued. In ed by such decree, the claimant appeals. Or- the meantime, as we have seen, the tenant der of Appellate Division reversed, and demoved out. On September 1st it tendered cree of Surrogate's Court affirmed. the keys to the owner, and asked to be reCharles Coleman Miller, of New York City, lieved of liability for rent thereafter. To for appellant.

Lynn C. Norris, James W. Redmond, Edward M. Perry and Michael J. Joyce, all of Brooklyn, for respondent.

this the owner assented, and resumed possession for herself.

The question now is whether there has been a breach of the covenant of quiet enjoyment imposing liability for damages upon CARDOZO, J. [1, 2] One Michael E. O'Don- the estate of the lessor. The lessee's claim, nell, the life tenant of real property in filed upon the settlement of the executor's Brooklyn, made a lease with covenant of accounts, was upheld by the surrogate, who quiet enjoyment to the William K. Voorhees fixed the damages at $1,900. At the AppelGrain Company for 7 years from November late Division the order was reversed and 1, 1917, at the yearly rent of $600, payable the claim dismissed. in equal monthly installments. He died on [3-5] A covenant for quiet enjoyment "can November 17, 1920, before the 7 years had be broken only by an eviction, actual or expired, and with his death the title to the constructive." Scriver v. Smith, 100 N. Y. property passed to his daughter, one Anna 471, 477, 3 N. E. 675, 676 (53 Ám. Rep. 224). S. M. Martin, who then and at the making An eviction results, however, when the occuof the lease was the owner of the remainder pant has submitted by valid attornment to in fee. The effect was the extinguishment a claim by title paramount. Cowdrey v. of the estate for years. Williams v. Alt, 226 | Coit, 44 N. Y. 382, 392, 393, 4 Am. Rep. 690; N. Y. 283, 123 N. E. 499. The lessee became Whalin v. White, 25 N. Y. 462, 465; Simers a trespasser if there was continuance of pos- v. Saltus, 3 Denio, 214; Curtiss v. Bush, 39 session "without the express consent of the Barb. 661, 664; Merryman v. Bourne, 9 Wall. person then immediately entitled." Code 592, 600, 19 L. Ed. 683; King v. Bird, 148 Civ. Proc. 1664; Real Prop. Law (Cons. Mass. 572, 20 N. E. 196; Tiffany on LandLaws, c. 50), § 530, as added by Laws 1920, lord & Tenant, 534. There is then ouster c. 930, § 1. under the old title, though possession is reOn November 30, 1920, the attorney for the sumed under the new one. George v. Putney, new owner wrote to the lessee, stating that 4 Cush. (Mass.) 351, 50 Am. Dec. 788; Holhis client had succeeded to the title, and clos brook v. Young, 108 Mass. 83. We do not ing with the words: "You will therefore forget, of course, that there are many cirkindly until further notice pay all rents to cumstances in which an attornment by a Mrs. Martin." This the lessee did for 6 lessee is a wrong to his lessor, and so of no months thereafter. In May, 1921, it was effect between them. In general, attornment notified that beginning with June 1st, rent to a stranger is ineffective unless made with must be paid at the rate of $100 a month in- the consent of the lessor, or "pursuant to or stead of $50 as before. The attorney for in consequence of a judgment, order, or dethe lessee protested that the owner had rec- cree of a court of competent jurisdiction," ognized the existing lease, and had continued or "to a mortgagee, after the mortgage has it in force for the residue of the term. The become forfeited." Real Prop. Law, § 224, owner in answer "repudiated the suggestion | re-enacting in substance 11 George II, c. 19. that she had recognized the lease" or adopt- This does not mean, however, that a lessee

(147 N.E.)

is disabled from attorning to a new title where the title under which he has entered, though valid at the time of entry, has expired in the interval by its natural limitation. Hoag v. Hoag, 35 N. Y. 469, 471; O'Donnell v. McIntyre, 37 Hun, 623, 626; Id., 118 N. Y. 156, 23 N. E. 455; Lamson v. Clarkson, 113 Mass. 348, 18 Am. Rep. 498. At least, that must be his right where, as here, the expiration of the particular estate is not disputed, but conceded. No doubt continued possession, though merely as a tenant at will, is a fact to be considered in reduction of the damages. The lessee is under no duty, however, to hold over upon new terms (Simers v. Saltus, supra), and damages, even if uncertain before, may be ascertained without difficulty when possession has been abandoned. We think the lessee did attorn to a title that was superior to that of its lessor when it paid rent to the owner of the remainder in obedience to her demand. Tiffany, supra, p. 183. The result was an eviction and thereby a breach of covenant, unless the attornment was equivalent to a revival of the lease.

[6] We are thus brought to a consideration of the effect of an attornment when made to title paramount. At common law the consent or attornment of the tenant was essential to a grant of the reversion. Tiffany, supra, § 19, p. 172; 3 Holdsworth, History of

fact a new contract and a new demise." Oakley v. Monck, L. R. 1 Exch. 159, 164; Tiffany, supra, pp. 179, 180, § 73, pp. 411, 413. Ratification of the old demise, at least in any proper sense, there obviously is none, for he who made the demise has not assumed to act for any one except himself, and least of all for one whose claim is paramount and hostile. Hamlin v. Sears, 82 N. Y. 327, 331. It is possible, of course, to incorporate in the new demise, expressly or by implication, the provisions of the old one, including the term of its duration. Such a case was Austin v. Ahearne, 61 N. Y. 6, where a lessee who had taken a lease from one of two tenants in common attorned thereafter to the other. The attornment was in writing, and in the light of all the circumstances the writing could not reasonably be interpreted as leaving the two tenants in common upon terms of inequality. There are indeed statements in the opinion that seem to go farther, but they were unnecessary to the decision, and were at once characterized as dicta.

"The present case only calls for a decision as to the precise point involved as between tenants in common. What is said in this opinion concerning the general law of attornment of a tenant to strangers is referred to by way of argument and illustration." Austin v. Ahearne, supra, at page 21.

If nothing more is shown than payment

English Law, 73, 74, 199; Digby, History of and receipt of rent, the result at common

Law of Real Property, p. 245.

"Attornment at common law signified only the consent of the tenant to the grant of the seignory, whereby he agreed to become the tenant of the new lord." Simers v. Saltus, supra,

216.

Real

law is the creation either of a tenancy at will or at most of one from year to year. Oakley v. Monck, supra; Keith v. Gancia & Co. [1904] 1 Ch. 774, 783; Corbett v. Plowden, L. R. 25 Ch. Div. 678; Doe ex dem. Chawner v. Boulter, 6 Adol. & El. 675; Gartside v. Outley, 58 Ill. 210, 214, 11 Am. Rep. 59; Tunick v. Federal Food Stores, Inc., 117 Misc. Rep. 329, 331, 191 N. Y. S. 174; Hinton v. Bogart, 166 App. Div. 155, 151 N. Y. S. 796; Tiffany, supra, pp. 180, 411, 413.

This consent is necessary no longer. Prop. Law, § 248; cf. St. 4 Anne, ch. 16. Not only that, but the grantees of the reversion have a remedy upon most, if not all, of the covenants of the lease to the same extent as the grantor would have had if the reversion [7] The question remains whether payment had remained in him. Real Prop. Law, § and receipt are supplemented here by dec223. Attornment in its primary sense, as it larations and circumstances sufficient to juswas understood at common law, is thus an tify a finding of the prolongation of the idle ceremony. The transfer of the rever- term in accordance with the first demise. sion, whether with the consent of the tenant We shall assume in favor of the respondents or without it, is a transfer of the lease and that such declarations and circumstances of its rights and obligations. There re- may sometimes be sufficient, though there is mains, however, a secondary sense in which no writing to be interpreted, and though the the act of attornment is still significant to- term is in excess of a year, the usual limit day. Tiffany, supra, § 19, p. 172. Attorn- for oral leases. In so doing we pass the ment may also mean the acknowledgment by question by whether there is need, to avoid a tenant that he holds under a new lord who the operation of the statute of frauds, that claims by title paramount, and not by grant the case be brought under some recognized of the reversion or as privy to the rever- head either of estoppel or of fraud, and of sioner. In such a situation, "the new ten- the equitable jurisdiction appropriate thereancy thus constituted, though popularly to. If all this be assumed in the way most spoken of as a continuing tenancy," is "in favorable to the respondents, we are satis

fied that the continuance of such a term may not legitimately be inferred from declarations or circumstances that are uncertain or equivocal. Such, we think, are the circumstances and declarations relied on by the respondents. The letter asking for the rents was signed by a lawyer as part of a routine demand. There is no evidence that the lawyer was empowered by his client to make a lease for a term of years, and nothing to suggest his assumption of such authority. If there had been a genuine understanding that he was binding her to that extent, we might expect something more of formality and precision. Instead, the demand appears upon its face to be provisional and temporary. The tenant is to pay the rents to Mrs. Martin "until further notice," and no longer. In all this there is little trace of a definitive election that the tenancy previously existing shall be kept alive until the end. Payments were accepted, it is true, for 6 months thereafter, but payments pursuant to the notice were presumably subject to its conditions, unless, it may be, after a lapse of time so great, a delay so unusual or unreasonable, as to import a new agreement. When finally the demand for higher rent was made, and was met by the lessee's suggestion that the owner had "recognized" the lease, there was prompt repudiation and disclaimer by the owner, and this in turn was followed on the part of the tenant by acquiescence and surrender.

[8] Viewing these events in their totality, we are unable to discover in them the clear and unequivocal tokens of an intention to accept an attornment effective for a term of years. The owner of the remainder was not in privity with the life tenant under whom the lessee had gone into possession. Oakley v. Monck, supra; Williams on Real Property (23d Ed.) p. 371. As a consequence, the acceptance of an attornment or some license equivalent thereto was essential to relieve the lessee of liability as a trespasser. The effect of the attornment was to give it such relief, but only while the license continued, or at most, under the statute (Real Prop. Law, § 232), till the October following. There came a time when the owner definitively repudiated the lease, and refused to confirm it by a new demise or otherwise. Then, if not before, the lessee was no longer under a duty to the representatives of the life tenant to remain in possession under a different tenure and one precarious and doubtful, but was free to surrender possession and stand upon its covenant.

[9, 10] We think the surrogate did not err in applying, as the measure of damage, the difference between rent and value. Pumpelly

v. Phelps, 40 N. Y. 59, 100 Am. Dec. 463; Mack v. Patchin, 42 N. Y. 167, 1 Am. Rep. 506; Friedland v. Myers, 139 N. Y. 432, 436, 34 N. E. 1055; Marsh v. Johnston, 125 App. Div. 597, 109 N. Y. S. 1106, affirmed 196 N. Y. 511, 89 N. E. 1104. There is nothing to show that the covenantee had knowledge, when it accepted the lease, of the covenantor's defect of title, even if we were to assume that such knowledge would be material. The burden is on the wrongdoer or the wrongdoer's representatives to prove the existence of circumstances tending to mitigate the damages that would normally or commonly attach to a reckless or intentional default.

Other questions are in the case, but they were properly disposed of in the courts below.

The order of the Appellate Division should be reversed, and the decree of the Surrogate's Court affirmed, with costs in the Appellate Division and in this court.

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(240 N. Y. 109) FOX et al. v. CITY OF NEW ROCHELLE. (Court of Appeals of New York. March 31, 1925.)

Municipal corporations 835-City not liable for increased flow of surface waters from pavement of streets and other improvements.

Municipality is not liable for increase in flow of surface waters, resulting solely from pavement of streets and other improvements, and cannot be required to limit the amount of surface water discharged into a stream to the natural flow of such stream before such improvements.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Margaret Fox and another, individually and as trustees, against the City of New Rochelle. From judgment of Appellate Division, Second department (209 App. Div. 889, 205 N. Y. S. 923), unanimously affirming a judgment of Special Term for plaintiffs, defendant appeals by permission. Modified and affirmed.

Charles A. Van Auken, of New Rochelle, for appellant.

Albert Ritchie, of New Rochelle, for respondents.

POUND, J. This action was commenced in equity by the plaintiffs "to compel the city of

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