Vann, J.
The determination of this appeal depends upon the construction to be given to the instrument, of which an analysis appears in the foregoing statement, in connection with certain sections of the Code appertaining to the subject. It is well settled that the parties to such a grant are presumed to have contracted with reference to the power of the Legislature to annul, modify or change the remedies therein provided for the collection of the rent reserved.
(Van Rensselaer
v.
Snyder,
13 N. Y. 299;
Van Rensselaer
v.
Slingerland,
26 N. Y. 580, 585.)
From an early day there has been legislation upon the subject, in the interest of both grantor and grantee, abolishing old and substituting new remedies, so as to conform to changes in times. Such legislation, when subjected to review by the courts, has uniformly been pronounced constitutional, even as to pre-existing instruments, because it affected the remedy only.
(Van Rensselaer
v.
Ball,
19 N. Y. 100.)
Where the right to re-enter for a breach of the covenant to pay rent was reserved, unless the lease prescribed the method of making a demand for the rent, it was necessary for the
landlord to proceed according to the common law, and either in person or by his duly authorized agent to make an actual demand of the exact amount of rent due on the very day that it became due, at a convenient time before sunset, so that th& money could be counted before night and at the precise place where the rent was made payable, or if that was not provided for in the grant or lease, at the most notorious place upon the land demised.
(Van Rensselaer
v. Jewett, 2 N. Y. 141, and cases cited on p. 148.) To relieve the landlord of this technical and inconvenient method of procedure, it was provided by a statute, passed before either of the leases under consideration was executed, that an action of ejectment should “ stand instead of a demand of the rent in arrear.” (L. 1805, chap. 95.) This statute appears in the Eevised Laws (1 R. L. chap. 63, p. 440, § 23), was re-enacted in the Eevised Statutes (2 R. S. 505, § 30), and is the basis of section 1504 of the Code of Civil Procedure, which is as follows: “ When six months’ rent or more is in arrear upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee or assignee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear or re-entry on the property.”
The plaintiff claims that this section applies to this case and that it should control the decision of this appeal
When the right to distrain for non-payment of rent was' abolished, it was provided by the same act that where a right of re-entry was reserved in the grant or lease in default of goods whereon to distrain, ejectment might be maintained, provided a written notice of intention to re-enter was given fifteen days before the commencement of the action. (L. 1846, chap. 274, § 3.)
This provision was substantially reproduced by section 1505-of the Code, of which the following only is here material: “ Where a right of re-entry is reserved and given to a grantor or lessor of real property in default of a sufficiency of goods, and chattels whereon to distrain for the satisfaction of rent,
due, the re-entry may be made, or an action to recover the property demised or granted may be maintained by the grantor or lessor, or his heir, devisee or assignee, at any time after default in the payment of rent, provided the plaintiff, at least fifteen days before the action is commenced, serves upon the defendant a written notice of intention to re-enter.”
The defendant contends that this section controls, and that service of the notice required thereby is essential to the maintenance of the action. The former section applies only when six months’ rent or more is in arrear, independent of the service of notice, and the latter, when the required notice has been served, regardless of how much, or how long, rent has been due. By neither is the remedy therein provided made exclusive, and a case might arise where both sections would apply.
As the right to re-enter in default of sufficient distress was reserved by the grant in question, it is evident that if the fif teen-day notice had been served, the grantor or landlord could have maintained ejectment under this section. It was so held under the corresponding section in the act of 1846, when leases similar in this respect were under consideration.
(Snyder
case, 13 N. Y. 299;
Slingerland
case, 26 N. Y. 580.)
It is also evident that unless tills grant provides a right of re-entry for some reason other than a default of sufficient distress, ejectment cannot be maintained until such notice has been served. It appears upon an examination of the grant that the right to re-enter does not depend solely upon the ground last mentioned, but that if either of the covenants and conditions to be performed by the grantees shall be broken “ then and in each and every such case ” the right of re-entry is expressly conferred upon the grantor and his successor in title. Among those conditions and covenants is the agreement to pay the rent reserved at the time and place named. This covenant, ‘t is to be assumed for the purpose of this appeal, was broken by the defendant. In other words, the tenant covenanted to pay the rent and agreed that if he broke this covenant the landlord might re-enter, and subsequently he broke the cove
nant. The stipulation for a right to re-enter upon this ground is entirely independent of the stipulation giving that right in case of a failure of distress. The provisions are alternative, separated by a disjunctive conjunction and followed by the comprehensive words “ that then and in each and every such case ” a re-entry shall be lawful. Thus the plaintiff, who in his complaint founds his right to recover upon this breach alone, had
“
a subsisting right by law to re-enter for the failure to pay the rent,” and as six months’ rent was in arrear, the case comes within section 1504 of the Code, which authorizes a recovery of the property granted or demised, without any demand. ■
This construction of the grant is in exact accord with the reasoning of the court in
Van Rensslaer
v.
Jewett (supra),
where an instrument precisely the same in all respects, except as to names, dates and amounts, was under consideration (pp. 142, 143). The Chief Judge speaking for the Court in that case said: “ The first question wdiich I shall consider is, whether there is a right of re-entry reserved by the terms of the lease upon a simple breach of the covenant to pay the rent as reserved. " * * If we adhere to the language wdiicli the parties have used rather than go upon intentions not expressed, it is plain, as I think, that there are two conditions of re-entry provided for by the proviso.
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Vann, J.
The determination of this appeal depends upon the construction to be given to the instrument, of which an analysis appears in the foregoing statement, in connection with certain sections of the Code appertaining to the subject. It is well settled that the parties to such a grant are presumed to have contracted with reference to the power of the Legislature to annul, modify or change the remedies therein provided for the collection of the rent reserved.
(Van Rensselaer
v.
Snyder,
13 N. Y. 299;
Van Rensselaer
v.
Slingerland,
26 N. Y. 580, 585.)
From an early day there has been legislation upon the subject, in the interest of both grantor and grantee, abolishing old and substituting new remedies, so as to conform to changes in times. Such legislation, when subjected to review by the courts, has uniformly been pronounced constitutional, even as to pre-existing instruments, because it affected the remedy only.
(Van Rensselaer
v.
Ball,
19 N. Y. 100.)
Where the right to re-enter for a breach of the covenant to pay rent was reserved, unless the lease prescribed the method of making a demand for the rent, it was necessary for the
landlord to proceed according to the common law, and either in person or by his duly authorized agent to make an actual demand of the exact amount of rent due on the very day that it became due, at a convenient time before sunset, so that th& money could be counted before night and at the precise place where the rent was made payable, or if that was not provided for in the grant or lease, at the most notorious place upon the land demised.
(Van Rensselaer
v. Jewett, 2 N. Y. 141, and cases cited on p. 148.) To relieve the landlord of this technical and inconvenient method of procedure, it was provided by a statute, passed before either of the leases under consideration was executed, that an action of ejectment should “ stand instead of a demand of the rent in arrear.” (L. 1805, chap. 95.) This statute appears in the Eevised Laws (1 R. L. chap. 63, p. 440, § 23), was re-enacted in the Eevised Statutes (2 R. S. 505, § 30), and is the basis of section 1504 of the Code of Civil Procedure, which is as follows: “ When six months’ rent or more is in arrear upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee or assignee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear or re-entry on the property.”
The plaintiff claims that this section applies to this case and that it should control the decision of this appeal
When the right to distrain for non-payment of rent was' abolished, it was provided by the same act that where a right of re-entry was reserved in the grant or lease in default of goods whereon to distrain, ejectment might be maintained, provided a written notice of intention to re-enter was given fifteen days before the commencement of the action. (L. 1846, chap. 274, § 3.)
This provision was substantially reproduced by section 1505-of the Code, of which the following only is here material: “ Where a right of re-entry is reserved and given to a grantor or lessor of real property in default of a sufficiency of goods, and chattels whereon to distrain for the satisfaction of rent,
due, the re-entry may be made, or an action to recover the property demised or granted may be maintained by the grantor or lessor, or his heir, devisee or assignee, at any time after default in the payment of rent, provided the plaintiff, at least fifteen days before the action is commenced, serves upon the defendant a written notice of intention to re-enter.”
The defendant contends that this section controls, and that service of the notice required thereby is essential to the maintenance of the action. The former section applies only when six months’ rent or more is in arrear, independent of the service of notice, and the latter, when the required notice has been served, regardless of how much, or how long, rent has been due. By neither is the remedy therein provided made exclusive, and a case might arise where both sections would apply.
As the right to re-enter in default of sufficient distress was reserved by the grant in question, it is evident that if the fif teen-day notice had been served, the grantor or landlord could have maintained ejectment under this section. It was so held under the corresponding section in the act of 1846, when leases similar in this respect were under consideration.
(Snyder
case, 13 N. Y. 299;
Slingerland
case, 26 N. Y. 580.)
It is also evident that unless tills grant provides a right of re-entry for some reason other than a default of sufficient distress, ejectment cannot be maintained until such notice has been served. It appears upon an examination of the grant that the right to re-enter does not depend solely upon the ground last mentioned, but that if either of the covenants and conditions to be performed by the grantees shall be broken “ then and in each and every such case ” the right of re-entry is expressly conferred upon the grantor and his successor in title. Among those conditions and covenants is the agreement to pay the rent reserved at the time and place named. This covenant, ‘t is to be assumed for the purpose of this appeal, was broken by the defendant. In other words, the tenant covenanted to pay the rent and agreed that if he broke this covenant the landlord might re-enter, and subsequently he broke the cove
nant. The stipulation for a right to re-enter upon this ground is entirely independent of the stipulation giving that right in case of a failure of distress. The provisions are alternative, separated by a disjunctive conjunction and followed by the comprehensive words “ that then and in each and every such case ” a re-entry shall be lawful. Thus the plaintiff, who in his complaint founds his right to recover upon this breach alone, had
“
a subsisting right by law to re-enter for the failure to pay the rent,” and as six months’ rent was in arrear, the case comes within section 1504 of the Code, which authorizes a recovery of the property granted or demised, without any demand. ■
This construction of the grant is in exact accord with the reasoning of the court in
Van Rensslaer
v.
Jewett (supra),
where an instrument precisely the same in all respects, except as to names, dates and amounts, was under consideration (pp. 142, 143). The Chief Judge speaking for the Court in that case said: “ The first question wdiich I shall consider is, whether there is a right of re-entry reserved by the terms of the lease upon a simple breach of the covenant to pay the rent as reserved. " * * If we adhere to the language wdiicli the parties have used rather than go upon intentions not expressed, it is plain, as I think, that there are two conditions of re-entry provided for by the proviso. First, a right of re-entry if no sufficient distress can be found upon the premises to satisfy such rent due and in arrear, as aforesaid.’ * * * And secondly, a right of re-entry if either of the covenants and conditions herein before contained on the part of the said party of the second part, his heirs and assigns, to be performed, fulfilled and kept, shall not be performed, fulfilled and kept, or shall be broken.’ The covenant to pay rent, as, indeed, all the other covenants of the lessee, of which there are several, precede this clause in the lease and clearly come within the language as well as the meaning of this second proviso of re-entry and to which it is plainly applicable. The covenant is absolute and unqualified, and 'although there may be a sufficient distress to satisfy the rent both at the day it is made payable and at the expiration
of the twenty-eight days next thereafter, the lessor is not bound to take his remedy by distress, but may have it by way of re-entry upon a breach of the covenant to pay rent.”
In
Hosford
v.
Ballard
(39 N. Y. 147, 152), the court said that the Act of 1846
“
is in terms applicable to a case in which the right of re-entry is by the grant or lease itself made to depend upon the default of a sufficiency of goods whereon to distrain, and nottwhere the right of re-entry is given by the lease or grant in default of the payment of the rent when it becomes due. Thus where the right of re-entry is reserved and given to a grantor or lessor, in any grant or lease, in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of any rent due, such entry may be made at any time after default in the payment of such rent, provided fifteen days’ notice be given, etc. Obviously, this does not describe the cases in which the right of re-entry is reserved and given on default of payment, without any regard to the question whether there are goods and chattels on the premises or not.” (See also
Van Rensseler
v.
Dennison,
35 N. Y. 393;
Cruger
v.
McLaury,
41 N. Y. 219;
Keeler
v. Davis, 5 Duer, 507.)
The
Snyder, Ball, and Slingerland
eases (supra), relied upon by the respondent, did not involve the point under consideration. In each of those cases the fifteen-day notice had been served and the action was brought, tried, decided and a recovery sustained upon that ground only. The effect of the breach of the covenant to pay rent and of the stipulation that if such covenant should be broken, the grantor or lessor might re-enter, was neither considered nor involved.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.