Valentine v. . Healey

70 N.E. 913, 178 N.Y. 391, 16 Bedell 391, 1904 N.Y. LEXIS 721

Opinions

Cullen, J.

The action was brought to recover a quarter’s rent of certain premises in the city of New York owned by the plaintiff and the defendant Healey, as tenants in common, the plaintiff owning three-quarters and the defendant Healey one-quarter. In May, 1891, the plaintiff and Healey by a written lease demised the premises to a firm composed of said Healey and the defendant Zabriskie for the term of one year at the annual rent of $8,500, payable quarterly, with the privilege to the defendants of continuing the lease for two years more upon giving notice in writing to the owners on or before February 1st, 1892. Notice to renew was not given. The relations between the plaintiff and Healey were unfriendly. On April 29th, 1892, Healey & Company wrote two letters, one to the plaintiff and one to the defendant Healey, informing each that as indicated by their failure to exercise the option reserved in the lease they did not intend to renew it. They further stated that understanding the premises had not been rented for the coming year they would be pleased to occupy the same for a few weeks from the first of May, paying a pro rata rent for such use and occupation. On the following day the plaintiff replied in writing: “ Yon have been already informed that I would renew the lease of the factory for one year at the same rent as in the present lease, but would not let it for a shorter period. As your letter only repeats your request for a few weeks occupancy from May first, my answer repeats my refusal to grant it. Tours truly, Henry 0. Valentine.” The defendant Healey replied to the letter of Healey & Company as follows: “ You are at liberty to continue to occupy the premises at a pro rata rent for the period of such occupancy. This privilege is accorded yon only with the understanding and agreement that such occupancy is to be terminated on a week’s notice from either party, in order that we may take advantage of any opportunity that may offer to rent 'the premises for the entire year. Very truly, Warren M. Healey.” Other correspondence was had between the parties, the details of which aie not necessary to the disposition of this case. The defendants continued to occupy the premises for some weeks after the expiration of the lease, and then removed from the premises. The learned judge at Trial Term dismissed the complaint on the authority of the decision of this court on a previous appeal in the action, reported in 158 M. Y. at page 369. The Appellate Division by a divided court reversed the judgment and ordered a new trial. Prom that order this appeal is taken.

We are of opinion that the disposition of this case is necessarily controlled by our previous decision. The theory on which the action is brought is that where a tenant remains in possession after the termination of Ms lease, the landlord may at his option hold him as a tenant for another year upon the terms of the jirior lease, and that such is the general rule there is no doubt. (Hayes v. Aldrich, 133 N. Y. 287.) But on the previous appeal this court held, through Haight, J., who wrote the prevailing opinion, that the general rule does not apply to a case where the tenant holding over is a tenant in common owning an interest in the premises. It is true that the opinion proceeded also on the further ground that as it appeared that the written lease was executed by the defendant Healey alone (which is now shown not to be the fact), it might be assumed that he was the agent for the plaintiff and was authorized to treat with the defendants as to the terms on which they might remain in possession of the premises. This latter ground is now wholly eliminated, for it appears that the plaintiff refused to consent to the defendants remaining in possession of the premises unless the same were taken for another year. But the two grounds on which the judgment of the court was based were, entirely independent, and the fact that in the present record' one of the legal propositions determined is no longer anplicable in no way affects the determination of the other.

It must be now assumed that Healey, in authorizing his firm to remain in possession of the premises, acted in direct opposition to the will of his cotenant, the plaintiff, and the only question presented is whether by-liis title as tenant in common he had power to suffer the firm to remain in possession without subjecting it to the liabilities that ordinarily obtain where a tenant holds over. This question was decided by the courts of this state as early as McKay v. Mumford (10 Wend. 351). There the plaintiffs and E. Mumford, one of the defendants, were tenants in common of a grist mill, each owning one moiety. The plaintiffs leased their half of the mill to the defendants, their cotenant E. Mumford and one W. Mumford, for the term of nine months. The defendants remained in occupation of the whole mill after the expiration of the lease, and the action was brought to recover for use and occupation the amount reserved as rent in the lease. It was there held that such continuance in possession by a tenant in common or under the authority of a tenant in common did not. operate as a renewal of the lease at the election of his cotenant. It was there said by Judge Nelson : “The fact of his (a tenant in common) not leaving possession does not authorize the inference that he still intends to hold under the lease; on the contrary, the presumption is that he holds under his own title, which gives him a right to the possession and enjoyment of the whole estate, liable, however, to account to his co-tenant at law. This presumption of possession by virtue of his own title may undoubtedly be rebutted, and then he would hold, as to the moiety of his co-tenant, as any other tenant, and subject to the same rules at law; but evidence that E. Mumford intended or avowed his intention to hold in defiance of the plaintiffs and in exclusion of their rights, does not rebut the presumption that he holds under his own title; it confirms it. * • * * There should be evidence showing, either expressly or impliedly, a recognition of the holding after the term as tenant to the plaintiffs, or in other words, an intention to hold under the agreement or with the assent of the plaintiffs, and not merely a possession entirely consistent with his common law rights.” In principle the case cited is on all fours with the one before us. There, as here, the tenants who it was claimed held over were not only the cotenant of the lessors, but also a third party, the partner of the cotenant, and the possession retained was that of the whole premises. If there be any difference between the two cases it lies in this, that in the MoKay case the lease was only of the undivided share of the lessor which the tenant never offered to surrender to his lessor at the expiration of the demised term, while here the lease was of the whole property executed by both the tenants in common. If the difference in circumstances justifies any distinction in principle, that distinction would operate in favor of the defendants, for Healey could be under no obligation to surrender his undivided fourth to the plaintiff. The authority of McKay v. Mumford has never been impaired by any subsequent decision in this state, but on the contrary the case itself was approved by this court on the previous appeal in this action. It has been recognized as a correct exposition of the law in Rockwell v. Luck (32 Wis. 71) and in Freeman on Cotenancy (see. 258), and we are referred to no authority in this country to the contrary. It may be that in the present case the action of the defendant Healey has been prejudicial to the interests of his cotenant, the plaintiff, though there is no proof of that in the present record, as the owners seem to have been unable to lease the premises to any third party and the defendant Healey remains liable to account for any profit he has reaped by the use of the property in excess of his share. If, however, such be the fact, it is one of the unfortunate results of common ownership of property. An obstinate or hostile tenant in common may subject his cotenants to inconvenience and often loss. If so there is always open a remedy to the cotenants; an action may be brought for the partition of the common property. But we do not see how the plaintiff can succeed in this case without overturning the settled rules of law regulating the tenure of property by tenants in common.

The order of the Appellate Division should be reversed and the judgment of the trial court affirmed, with costs.