Lord v. Vreeland

13 Abb. Pr. 195

• Court: New York Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Ingraham, J.

—The defendant is sued, in different capacities, for a breach of covenant, in a lease executed by Eliza Lewis. He is held to be liable as such, because the covenant was made by her. He is sought to be made liable as executor of Gautier, because Gautier was the residuary legatee under the will of Eliza Lewis, and received a large amount of real and personal estate.

Hartman Vreeland, in his individual capacity, is sought to be charged as the devisee of real estate from Gautier, which formed a part of the residuary estate of Eliza Lewis, and which was devised to Gautier.

It seems to me that Vreeland, in all the capacities in which he is sued, is properly made a defendant, if the plaintiff seeks to obtain a judgment for the damages arising from the breach of the covenant in the lease of Eliza Lewis, and to obtain a judgment therefor, against the heirs or devisees of Lewis.

So far as the facts are set out in the complaint, there is claimed to be but one cause of action, viz., damages for breach of a covenant in the lease of Eliza Lewis: that covenant was that future renewals should be granted, and that such renewals should, be made by parties lawfully entitled to the premises. The proceedings to compel a renewal of the lease were no bar to this action. That might be a bar to the covenant, that required a yenewal of the lease to be given by the lessor, her heirs, executors, administrators, or assigns, inasmuch as it would have been a performance by them. At that time, the defect of title was unknown, and if it were not for the covenant first mentioned, I suppose the plaintiff’s only remedy would be on the covenant of quiet enjoyment in the second lease. But the additional covenant, that the renewed lease shall be executed by parties lawfully entitled to the premises, has not been performed, and the breach of it furnishes a good cause of action against the representatives of Eliza Lewis.

It is proper, also, to state that in this complaint there is but one cause of action set out. In order to obtain a proper remedy, therefore, against the representatives and devisees of Eliza Lewis, all the matters set out in the,complaint are proper and pertinent; and although they might be used for. the foundation of another cause of action, yet the insertion of the second lease in the complaint cannot be said to be entirely irrelevant, to show the breach of the first covenant.

Eor these reasons, I am not able to adopt the conclusion that more than one cause of action is set out in the complaint. The plaintiff can only recover for one cause, as the claim upon the second lease is not set up as a further or separate cause of action.

It is true, in his prayer for relief he claims damages against Vreeland in his individual capacity. But the prayer of the complaint is not to be demurred to. If the defendant is entitled to any remedy in regard to the complaint, it can only be by motion to strike out such parts as are irrelevant. As it stands before me, it is but for one cause of action, and the objection as to misjoinder of causes of action is not well taken.

The objection of defect of parties is answered by what I have already stated. The action is not on the renewed lease; it was therefore unnecessary to make as parties persons who were not parties to or representatives of the original lessor.

I am very free to state that the claim for damages against Vreeland personally, as lessor of the second lease, cannot be sustained in this action, and if it had been stated in the complaint as a separate cause - of action, it would have been a good ground of demurrer. It appears to me proper that the plaintiff should amend his complaint in this respect, so as to confine the claim solely against the representatives and devisees of Eliza Lewis.

I, however, can make no order therefor on this demurrer.

Judgment for plaintiff on demurrer, with leave to defendants to amend on the . usual terms. ° . .