author: Monell, J. McCunn, J.

text:
    HENRY D. TOWNSEND, Plaintiff and Respondent, v. JOHN GILSEY, Defendant and Appellant.
    A letting In good faith of a part of a building which, without the privity or consent of the landlord, is used for purposes of prostitution, will not excuse the payment of rent by tenants of other parts of the same building. To operate as an eviction and terminate the lease to other tenants, it must be shown that the letting of the part complained of was for the purpose of being put to an improper use, or at least with the knowledge of the landlord that it was to be used for such improper purpose.
    Before Monell, McCunn, and Freedman, JJ.

      [Decided May 3, 1869.]
    The action was to recover a quarter’s rent (from May 1 to August 1, 1862), under a written lease, for six years, from May 1,1860, of the first floor of the building on "the south-east corner of Broadway and Twenty-third street. The defense was, that after the defendant took possession, and before the rent sued for had accrued, the landlord let the lower part of the building and basement under the store occupied by the defendant to tenants, to he used and oocwpied, and was thereafter' oocwpied and used, as a house of ^prostitution and ill fame ; by reason whereof the premises occupied by the defendant were unfit for occupation, and he was thereby evicted therefrom.
    The action was tried by Mr. Justice McCunn, and a jury.
    At the close of the evidence the plaintiff’s counsel requested the Court to direct a verdict for the plaintiff. The defendant’s counsel requested the questions of fact to be submitted to the jury. The Justice refused to submit any question of fact to the jury, and directed a verdict for the plaintiff. . The defendant excepted, and appealed from the judgment.

      Mr. Nathan A. Chedsey for appellant.
    ■ The manner of fitting up the basement; the presence of Wet-more there; and the visitation thereof by prostitutes for prostitution, and knowledge thereof by him; and that the nuisance existed, until after the 1st of May, 1862, were clearly proved.
    Mr. Wetmore had the right, and promised to abate the nuisance, and it was his duty to do so. He created and continued the nuisance. The appellant complained of the same to the police; so did Mr. Mahoney; and the appellant and his under-tenants abandoned the premises because of the nuisance.
    The learned Justice should have submitted 'the several questions of fact to the jury as requested; and his refusal was erroneous; and the expressions of the Justice, as his reasons, were also erroneous (Gilhooly v. Washington, 4 Com.).

      Mr. Joseph J. Marrin for respondent.
    In order to defeat a recovery, the defendant was bound to show affirmatively that Wetmore or the plaintiff created the alleged nuisance or was instrumental in producing or maintaining' it.
    This is clearly laid down in Gilhooly v. Washington (3 Sandf., 330).
    The conclusion from that case is that in an action of covenant under a sealed lease direct instrumentality of the landlord in the creation or maintenance of the nuisance complained of must he shown by the defendant, in order to bar a recovery for rent;
    Ho testimony whatever was adduced to show that the basement was rented by Wetmore or the plaintiff for any improper purpose, or that Wetmore or the plaintiff were instrumental either in the creation or maintenance of the alleged nuisance.
    Nor is there any testimony to show that either Wetmore or the plaintiff were instrumental in maintaining the alleged nuisance.'
   Monell, J.

In the ease of Gilhooly v. Washington (3 Sandf. S. C. R., 330) the law applicable to this case is stated to be, that a letting in good faith of the portion of the premises complained of, without any reason to suspect the purposes for which they are to be used, will not excuse the payment of rent by other tenants. This case was affirmed by the Court of Appeals, without disturbing any of the reasons upon which the judgment below was founded (4 N. Y. R., 211).

To operate as an eviction and determine the lease, it was necessary for the defendant to show in this case that the letting of the lower part of the building was for the purpose of being put to an improper use, or at least with the knowledge of the landlord that it was to be occupied for such improper purpose.

The Court directed a verdict for the plaintiff, for the reason, as stated by the learned Justice, that a verdict for the defendant would be set aside, as being against the clear weight of the evidence.

I have carefully read all the evidence given on the trial, and I have not found any which would have justified a verdict for the defendant.

The only piece of evidence which it can be or is claimed to have some tendency toward supporting the defence and bringing the case within the rule of law above stated, is in the testimony of the defendant.

After stating the character of the occupancy of the basement, and of giving notice thereof to the plaintiff’s assignor, Wetmore, the defendant testified that he took the keys to Wetmore, and told him he abandoned the premises on account of the prostitution in the basement; to which Wetmore replied, “ If I could let the basement for any thing else, for a respectable business, I would have done so; bút I had to take what I can get, they are so far up.” And this is the only evidence upon which the defendant relies as showing a letting by Wetmore for purposes pf prostitution, or a knowledge in him that the premises were to be used for such purpose.

To give the effect to this piece of evidence which the defendant claims should be given to it, it must of itself (for there is no other evidence to support or corroborate it) be sufficient to fairly establish that Wetmore, when lie let the premises to Brooks, knew that Brooks hired them for and intended to use them in the exceptionable manner complained of. It is not enough that Wetmore afterward became aware of the objectionable use to which Brooks had put the premises.

This-declaration of Wetmore was made some eighteen months after the letting to Brooks, and at the time the defendant was about to abandon the premises on account of the misconduct of Brooks ; and the defendant was testifying to a conversation with Wetmore in respect to such misconduct, and its effect upon the. defendant’s business.

A literal construction of a paid of the language employed Tpy Wetmore might possibly be, that he was aware of the use to which Brooks designed' to put the premises. _ He said if he could let them for a respectable business “he would have done so.”But, taking the whole declaration together, it is entirely evident that he meant, that if he" could then let the premises for any thing else he would do so; for he said, “ if I could let,” &c., referring of course to the present and not to the past.

At the time Brooks fitted up the basement, there was nothing to awaken a suspicion that it was to be used for an improper purpose. It was fitted up as a bar and restaurant; and neither. Wetmore nor the defendant could suppose that Brooks intended to allow the premises to be used for purposes. of prostitution. Bor was there any fact or circumstance shown which was calculated to apprise Wetmore, or from which it could be inferred that he knew at the time of letting to Brooks that they would be used for an improper and injurious purpose. Therefore, to justify a verdict for the defendant, the declaration testified to must be taken to be of itself sufficient evidence of such knowledge in Wetmore. I am not willing to give it such weight. It is, in my judgment, too loose, and too uncertain as to its meaning, to justify, without corroboration or support, a conviction of Wet-more of being a party to the designs of Brooks.

I am, therefore, of the opinion that there was not sufficient evidence to sustain the defence, and that the direction to find a verdict for the plaintiff was correct.

The judgment should he affirmed.

McCunn, J.

(concurring). In effect, this is an action of. covenant for a quarter’s rent, alleged to he due on the 1st of August, 1862. The defense interposed is, that by consent and connivance of the landlord the basement of the house in question was converted into a place of prostitution, and that, by reason thereof, the appellant (lessee) was obstructed and defeated in his business ; and that, in consequence, and before the rent in controversy, or any portion of it, accrued due, he abandoned the premises. In other words, the answer sets up a plea of eviction.

Apart from any special covenant, a demise imports, ex vi termini, a warranty of peaceable possession, and a proper plea of eviction is always a sufficient answer to an action for rent, even on a lease under seal. The question is, was there, in the present instance, an exaction, in the legal sense of the word ? Anciently, nothing short of an actual expulsion operated an eviction; but, in modern times, the rule has been liberalized in favor of the tenant; and now any intentional and injurious interference by the landlord with the beneficial enjoyment of the premises will discharge the tenant from his obligation for the rent. The interruption, however, must be the work of the landlord, and he is not responsible for the misconduct of third parties. The defense, in this case, brings on the point, whether the landlord be. implicated in the establishment or continuance of a bawdy-house in the basement of the demised premises. If he is not instrumental either in the creation or continuance of the nuisance, the plea of eviction is without support (Gilhooly v. Washington, 4 N. Y.). A mere omission on his part to abate the nuisance has never been held an answer to an action for rent (Gilhooly v. Washington, supra ; Mortimer v. Brumer, 6 Bosw., 653; Ogilvie v. Hull, 5 Hill, 52).

An eviction, xvhether physical or moral, necessarily implies some affirmative misconduct on the part of the landlord (Cohen v. Dupont, 1 Sand., 260; Cram v. Dressev, 2 Sand., 120; and such is the doctrine even in Pendleton v. Dyelt, 8 Cow., 727).

How, in the present case, we see no evidence whatever of such misconduct. The utmost urged against the plaintiffs assignor, even in the defendant’s testimony, is that, informed of the nuisance, he neglected to abate it.

Of evidence of assent to the ‘ nuisance, if any, there is not enough to raise a reasonable presumption of the fact.

Hence, the case exhibits nothing that should have been submitted to the jury; and the Court did not err in directing a verdict for the plaintiff for the above reason. I concur in sustaining the judgment below.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    ABNER H. McCORMICK and Another, Plaintiffs and Respondents, v. JOHN B. SARSON, Dependant and Appellant.
    Where, upon a sale of lumber of different qualities, a partial failure of consideration— i. e., a delivery of inferior qualities—is available only by way of recoupment of damages, and must be set up in the answer, the defence not being taken by answer, it is not error to exclude evidence of the inferior quality of the lumber. Where a purchaser accepts delivery, he can only claim a deduction, and cannot defeat a recovery.
    Before Monell, MoCunn, and Freedman, JJ.

      [Decided May 3, 1869.]
    This case was tried before Mr. Justice McCunn and a jury.
    After the plaintiffs had closed their case, the defendant offered to show that all the lumber for which the action was brought as prime, and a large portion of the lumber for which the action was brought as merchantable, was not prime or merchantable, respectively, as claimed, but was only refuse, and of a vastly inferior quality to prime or merchantable.
    The Court refused to allow the testimony, to which ruling the defendant excepted.
    The following receipt having been offered in evidence—

      " Received, Cedar Keys, Florida, September 28, 1867, of McCormick & Dawkins, 53,732 feet prime lumber; 166,115 feet merchantable lumber; 58,562 feet refuse lumber, and 107,675 feet round logs, in accordance with an agreement entered into by McCormick & Dawkins, at Cedar Keys, Florida, and John B. Sarson, of the city of New York, on the 17th day of June, 1867.
    “ M. W. DOWNIE, Agent.”
    —the defendant, to rebut the assertion of agency, offered in evidence the following copy of a letter, viz.:

      “ New York, September 5, 1868.
    “A. H. McCormick,
    “ Cedar Keys, Fla.:
    “ Dear Sir—I have received a letter from Col. Downie, in which he says the lumber at your mills does not agree with your representation of qualities and quantities, which is also borne out by the cargo of the Ann and Susan you shipped here to Leavitt, and drawn against the proceeds directing him to put the balance to my credit, why I do not know, as I never gave you any orders to ship any lumber for me; and if I had any, why should you draw against the proceeds yourself % The cargo, Mr. Leavitt tells me, as he is informed by his brokers, is the worst as to quality ever sent here; he sold it to arrive, and the purchasers when they saw it refused to take it, and it was re-sold at a heavy loss as refuse; the quantity was also short several thousand feet, and the captain of the vessel explains it, that to accommodate you he signed the bills of lading before he received the cargo and left part behind. Mr. Downie also writes me that he has drawn drafts on New York on my account in your favor; he has no authority to do so or act for me, and I shall not pay them.

      “ I shall be glad to hear from you what part of the money I have paid you are willing to return, as under the circumstances you cannot expect me nor will I receive any of the lumber.
    “ I should like to hear from you as early as possible, and have the matter settled.”
    Which copy defendant proved was a true copy of a letter written by him on the 5th day of September, -1867, in the office of Rufus W. Leavitt, in the city of New York, and inclosed in an envelope and stamped and directed to-the plaintiff, Abner H. McCormick, at his residence. at Cedar Keys,, in the State of Florida, and deposited in a box in the office of said Leavitt, where all letters of said office intended for the mail were deposited.
    Then the defendant offered to show by said Leavitt that his custom and the invariable course of business of his -office was to send the letters deposited in said box every afternoon for deposit in the post-office of the said city of New York.

      This evidence was objected to by the plaintiffs, and excluded by the Court, to which ruling the defendant excepted.
    After the defendant had closed his case, the Court ruled that there was but one question to go to the jury, viz., whether the contract offered in evidence by the plaintiff was executed on Sunday, and instructed the jury that if they found that the contract was not made on Sunday, to find a verdict for the plaintiffs for the amount claimed in the complaint, to which ruling and instruction the defendants excepted.
    The jury found a verdict for the plaintiffs.

      Mr. Moody B. Smith for appellant.
    The complaint was on a sale of lumber, certain amounts of three different qualities, at fixed prices.
    The answer was a general denial, except the contract, which is incorporated in the answer, showing a contract to purchase all the sawed lumber which might be on hand in the yard of the mill, at the amount, per thousand, for each quality stated in the complaint; and showing father that “ the amount in feet is to be ascertained upon measurement by some competent measurer, unless the parties can agree amongst themselves.”
    The amount of each quality is directly put in issue by the pleadings.
    Baling out evidence of the latter was error.
    “ Evidence of the number of feet of sawed lumber in the yard, without evidence of the quality, gives no data for the amount of damages, and no verdict for any particular sum can be given.”
    The Court erred in excluding the letter (Pritt v. Fairchild, 3 Camp., 305; Tousey v. Williams, M. M., 129; Gaskill v. Skene, 14 Jur., 597; 19 L. J.; 2 B., 275).
    The Court erred in ruling that, “ if they found that the contract was not made on Sunday, they should bring in a verdict for the plaintiff, for the amount claimed in the complaint,” because such instruction was encroaching upon the province of the jury.

      Mr. Livingston K. Miller for respondent.
    The offer to show that the lumber was unmerchantable was properly overruled, because the evidence was inadmissible, as no such defence had been set up (Beatly v. Swartwont, 32 Barbour, 293; Wight v. Delafield, 25 N. Y., 266 ; Butler v. McCauley, 38 Barb., 413 ; McKyrig v. Bull, 16 N. Y., 297).
    The second exception is to a refusal to admit a copy of a letter, which it was claimed was sent to the plaintiffs, and the object of which was to revoke the agency of one Downie, who had theretofore acted for defendant in" the transaction; the evidence was inadmissible, because no defence was pleaded under which the proof could be made.
    It was not competent to prove by a letter mailed from New York September 5, 1867, that an agency which had been acted upon, and mainly consummated on the 17th ¿Tune, previously; could be. thus cancelled (Millbank v. Dennistoun, 10 Bosw., 382).
    The only defence set up as to which there "could have been any evidence, was as to whether the contract was made on Sun-day; and although, as a matter of law, it would have constituted no defence had it been made on Sunday, the defendant could not complain if that question was submitted to a jury (Thompson’s Digest, laws of Florida, page 499).
   By the Court:

Monell, J.

There are two exceptions only in this case which we can examine, namely, to the exclusion of the evidence of quality, and to the exclusion óf a copy of the defendant’s letter. As to the third exception, namely, the instruction to the jury, we have no means of determining its correctness, as we are not furnished in the printed case with. any of the evidence on the part of the plaintiff, and we must presume" that it was sufficient to authorize the instruction. ',

The complaint alleged an agreement by the plaintiffs to sell and deliver to the defendant “ all the sawed lumber then in the yard of a saw-mill at Cedar Keys,'Florida, at a price per 1,000 feet as follows: For prime lumber, $17; for merchantable lumber, $15 ; for refuse lumber, $8; for round logs, $7.” The answer denied the complaint, and set up fraud in procuring the contract, and other defenses.

The printed case, without giving any of the evidence on the part of the plaintiffs, states that, after the plaintiffs had closed their case, the defendant offered to show that all the lumber for which the action was brought as prime, and a large portion for which the action was brought as merchantable, was not prime or merchantable, but was only refuse and of inferior quality. The evidence was rejected, and the defendant excepted.

Under the pleadings, I think the evidence was properly excluded. A partial failure of consideration could be set up only by way of recoupment of damages, and should be set up in the answer. If not set up as a defense,pro tanto, proof of a failure to perform the contract, where there had been a delivery of the commodity, would not defeat a recovery (Story on Sales, see.. 448). That the contract called for particular qualities or kinds of lumber, and the plaintiff had to prove delivery of certain numbers of feet of each kind and quality, did not make it proper to prove, unless it was made a defense by the answer, that the quality was inferior. The defendant having accepted a delivery, he could only recoup his damages if the quality proved inferior; and, therefore, as the pleadings were, the evidence was wholly immaterial, and for all these reasons was properly kept out of the case.

In regard to the exclusion of the copy of the defendant’s letter, little need be said. There was not sufficient evidence of the original having been sent, nor was there any notice to produce the original, all of which was necessary to let in secondary proof.

The case is so badly made up, that we are left mostly to conjecture as to what transpired on the trial. But as every intendment is in favor of the correctness of the judgment it must be affirmed.