Hall v. . Gould

13 N.Y. 127

• Court: New York Court of Appeals
• Decided: September 5, 1855
• Status: Published

Opinions

Johnson, J.

Three questions are presented in this case: 1st. "Whether, upon the facts' appearing in the pleadings and evidence, the plaintiff has made out a cause of action against the defendant; 2d. Whether that cause of action can be recovered upon under the pleadings, as they were originally drawn ; and 3d. Whether it was in the power of the court co allow such amendments as were necessary to conform the pleadings to the facts.

Taking all the provisions of the lease together, it was manifestly the intention of the parties that in case of a breach by the lessee, or any one in under him, of the covenant “ that he would not himself, nor would he allow any one else, to make use of the premises for any kind of disrepu table business, including the keeping of a retail grocery o.f liquors,” and a reentry by the lessor for such breach, the lessee should remain answerable for any loss of rent to the' lessor. This is necessarily involved in the provision, that in case of reentry the lessor was to relet the premises for the benefit of the lessee. This _ being the agreement of the parties by an instrument under their seals, providing for the exact case which has happened, I do not see upon what ground a court can refuse to hold them to its terms. It certainly is not an illegal agreement, nor is there anything unreasonable in a lessee agreeing to completely indemnify his lessor for any injury which may arise to him by the lessee’s breach of his own agreement.

By the entry for condition broken, the estate of the lessee was at an end, and the lessor was in of his former estate. Rent, as such, could therefore no longer accrue to the lessor from the lessee ; his liability rested only upon his covenant looking to this very event. The complaint in this case set out the hiring and the terms of payment provided by the lease, averred the entry and occupation by the defendant and his tenants, and that the rent was due for a certain specified period; to it was annexed a copy of the lease, with a notice that the action was brought upon it. The answer and reply contained averments which put in issue between the parties all the facts material to determine their rights.' Under these circumstances, there is no ground to suppose that the defendant could have been misled to his prejudice in maintaining his defence upon the merits. The plaintiff has claimed the sum to which he turns out to have been entitled, he has given the instrument upon which his claim arose; but he has called the sum rent, when in point oí law it was not, strictly speaking, rent. This was not such a variance as it was beyond the power of the court ti remedy by way of amendment. (Code of 1848, §§ 145, 146 147.)

The judgment should be affirmed.

Gardiner, C. J., Denio, Marvin, Crippen and Dean, JJ., concurred in the foregoing opinion.