
    Emma Lawrence Jacob, Respondent, v. J. Campbell Thompson, Appellant.
    
      Landlord and tenant — counterclaim, in an action for rent, of damages for a preach of covenant by the landlord — right of a tenant in possession to refuse to pay rent —effect of a judgmeiit in summary proceedings against the tenant — waiver of damages.
    
    In an action brought to recover two installments of rent due under a lease which contained the following provision: “ The house and outbuildings to be wired for electric lights and fixtures furnished by the party of the first part,” the defendant, who was in possession of the demised premises at the time the installments of rent sought to be recovered became due, in his answer alleged as an equitable defense and counterclaim that prior to the execution and delivery of the lease it was agreed that the plaintiff should procure the introduction of an electric current into the wires and fixtures furnished by her so that the house and outbuildings could be illuminated by electricity; that this provision of the agreement had not been inserted in the lease through the fraud of the plaintiff, and that the defendant executed such lease by mistake, believing that the clause had been inserted therein.
    He further alleged that the plaintiff had not carried out such agreement. The relief demanded was the cancellation of the lease and the recovery of money damages, but the case was treated as though the defendant had also asked to have the lease reformed. Upon the trial the defendant conceded that he was dispossessed from the premises for non-payment of rent, and also expressly waived “ electric power damages.” The trial justice dismissed the counterclaim.
    
      Meld, that the judgment dismissing the counterclaim should be affirmed;
    Laughlin, J., dissented.
    That when the defendant conceded that he had been dispossessed for the non-payment of rent the trial justice was obliged to dismiss the counterclaim, as a judgment rendered in summary proceedings for non-payment of rent is conclusive between the parties as to the existence and validity of the lease, the occupation by the tenant, and that rent is due, and is a bar to an action brought by the tenant against the landlord to cancel the lease, even if this question were not litigated or considered in the summary proceedings (per McLaughlin and Patterson, JJ.):
    That the counterclaim was also properly dismissed for the reason that the violation by a landlord of a covenant contained in the lease will not relieve the tenant from the obligation to pay rent while he remains in possession of the premises (per McLaughlin and Patterson, JJ.);
    'That, in such a case, the tenant may maintain an action against the landlord to recover the damages resulting from the breach of the covenant, or he may counterclaim the same in an action brought by the landlord to recover the rent, hut that, as the defendant had, upon the trial, expressly waived “electric power damages,” which were the only damages claimed by him, the plaintiff was entitled to recover the rent reserved in the lease. (Per McLaughlin, Patterson and Ingraham, JJ.)
    Appeal by the defendant, J. Campbell Thompson, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the counterclaim set up in the defendant’s answer.
    
      William P. Maloney, for the appellant.
    
      Charles De Mart Brower, for the respondent.
   McLaughlin, J.:

On the 20th of April, 1900, the plaintiff leased to the defendant, for the term of three years from the 1st of May, 1900, at an annual rental of $1,800, payable quarterly in advance, certain premises consisting of a “ house and outbuildings with the land thereto belonging” at Orienta Point, Mamaroneek, Westchester county. The lease was in writing and, among other things, contained the following stipulation: “ The house is to be repapered and painted where necessary and gone over and put in tenantable condition, also the house and outbuildings to be wired for electric lights and fixtures furnished by the party of the first part.” The defendant signed the lease and entered into possession of the premises, the house and outbuildings being wired for electric lights when he took possession, but unconnected, so that the electric power could be turned on. He was dispossessed on April 2, 1901, for failure to pay rent, as appears from an admission made by the respective counsel upon the trial. This action was brought to recover two installments of rent which became due before he was dispossessed. The defendant by his answer denied every allegation of the complaint “ in manner and form as therein alleged ” and then set forth facts constituting an equitable defense and counterclaim, and the relief demanded was for the cancellation of the lease and the recovery of money damages. The equitable defense and counterclaim pleaded was in substance that, prior to the execution and delivery of the lease, it was agreed ' that the plaintiff would, at her own cost and charge, immediately after defendant went into possession, procure the introduction of an electric current into said house and outbuildings along wires and fixtures which plaintiff would lay and furnish for that purpose ” so that the said house and outbuildings could be illuminated by electricity ; that this provision of the agreement had not been inserted in the lease in terms through the fraud of the plaintiff and that the defendant executed such lease by mistake, believing that such clause had been inserted therein, and that the plaintiff had failed to carry out the real agreement as made between the parties by the introduction of such electric current. The defendant did not ask to have the lease reformed by inserting in it the clause which he claimed was made prior to the execution of the writing, but at the trial the case was treated by both parties as one in which was involved, on the evidence, the right of the defendant, first, to a reformation of the lease, or, second, to an adjudication rescinding it, or, third, to a recovery of damages for the breach of the lease if it were reformed, and a provision inserted therein in accordance with the defendant’s contention as to what had actually been agreed upon. The justice at Special Term dismissed the counterclaim, holding that the defend ant had failed to prove facts which would entitle him either to a reformation of the lease or its rescission.

First. By the admission above referred to the defendant concedes that he was dispossessed for the non-payment of rent on the 2d of April, 1901. If this were so, then it was by a judgment procured by the plaintiff in summary proceedings and that judgment is conclusive both as to the possession up to that time by the defendant and the rent then due from him to the plaintiff. (Brown v. Mayor, 66 N. Y. 385; Reich v. Cochran, 151 id. 122, and cases cited.) A judgment taken by the landlord in summary proceedings for non-payment of rent is conclusive between the parties as to the existence and validity of the lease, the occupation by the tenant and that rent is due. (Reich v. Cochran, supra.) In the case cited it was held that a valid judgment obtained by a landlord in summary proceedings to dispossess a tenant for the non-payment of rent is a bar to an action brought by the tenant against the landlord to cancel the lease between them, even if this question were not litigated or considered in the summary proceedings. Therefore, when the defendant conceded that he had been dispossessed for the non-payment of rent, the trial justice, under the authorities cited, could do nothing but dismiss the counterclaim, and this irrespective of the merits as to the defendant’s defense or counterclaim pleaded.

Second. The counterclaim was also properly dismissed for another reason. When the defendant entered upon the demised premises under the lease and thereafter continued in possession of them, he was obligated to pay the rent reserved and he could not excuse himself from making such payment on the ground that the plaintiff had failed to keep her covenant to introduce the electric current. A tenant must pay the rent reserved or move out. This does not mean that if defendant sustained any damage by reason of the breach of the plaintiff’s covenant to introduce the electric current he could not recover the same; on the contrary, he could have maintained an action to recover such damages, or he could have counterclaimed the same in an action brought by her to recover the rent. (Kelsey v. Ward, 38 N. Y. 83; Thomson-Houston Elec. Co. v. D. L. I. Co., 144 id. 44.) But upon the trial the defendant expressly waived “ electric power damages.” The only damage claimed was the failure to introduce the electric current, and when he had waived this the plaintiff, upon both principle and authority, was entitled to recover the amount of rent stipulated in the lease. The counterclaim had been destroyed by the waiver, and the trial court could do nothing but dismiss it.

The judgment appealed from, therefore, must be affirmed, with costs.

Patterson, J., concurred; Ingraham, J., concurred on the last ground stated in the opinion; Laughlin, J., dissented.

Laughlin, J. (dissenting):

Equity forbids and I think the law does not require the affirmance of this judgment. The house and outbuildings were wired for electric lights according to the agreement, but the plaintiff was disappointed in her expectation of being able to bring the electric current to her premises on account of the refusal of the owner of land intervening between them and the public supply to license the erection of poles and wires. The lease, without reformation, quite clearly indicated that a material consideration was the fact that electricity was available for use on the premises ; but if that were doubtful it has been satisfactorily shown by the testimony introduced to reform the lease. Of what use was it to the defendant to have the building wired and properly equipped for electricity if a supply of electricity could not be obtained ? Is it reasonable to suppose that he intended to erect an electric light plant for his own accommodation on a three years’ lease of a summer residence ? The court erred in declining to reform the lease. Had it been reformed in accordance with the answer and the evidence introduced thereunder, it would then have appeared that the plaintiff contracted to bring the electric current to the premises and connect the same with the wires strung throughout the buildings thereon for the use of the defendant immediately after he took possession. As the lease was made April twentieth and he was to take possession May first, probably the limited time would not enable plaintiff to provide for the supply of electricity before defendant took possession. This covenant she failed to keep. It was a condition precedent to her right to recover rent under the lease other than the first quarterly payment which was made in advance. The defendant took possession in ignorance of the fact that the electric light could not be connected with the wires of an electric light company which furnished electricity in the vicinity. He remained in possession and paid rent for the quarter commencing August first on the assurance of the plaintiff that she expected to overcome the difficulty and perform her agreemént. After this payment and during the same month, she abandoned all hope of complying with her agreement in this regard, and so notified the defendant, and he testified, referring to this notice, “After this conversation I moved out.” I think the fair inference from this testimony is that upon its being definitely known that the plaintiff could not perform her contract, they being unable to agree upon a modification thereof, he abandoned the premises. This inference is not overcome by the alleged admission with reference to defendant being dispossessed. It appears by the record that while the defendant had the case his counsel said to plaintiff’s counsel, “ Is it admitted that Mr. Thompson was dispossessed on the following April 2d, 1901, for failure to pay the rent ? ” To which plaintiff’s counsel replied, “We admit that that is a fact.” If this admission on the part of the plaintiff be deemed binding on the defendant because thus called forth, it does not necessarily indicate that the defendant actually remained in possession until the date specified; but, to be consistent with the testimony to which allusion has been made, it may be construed as meaning that on that date the plaintiff took possession because of defendant’s failure to pay rent. It is altogether too informal to be regarded as an admission that the defendant was dispossessed pursuant to a final order of a court of competent jurisdiction made in a summary proceeding duly instituted, in that he had been in the actual possession and occupancy of the premises until that time. But be that as it may, this action is founded on the lease as originally made, and neither by the complaint nor by the reply is the issue of waiver of her performance presented. If the court had reformed the lease the plaintiff would be asking a judgment for the full amount of the rent without having performed her agreement to connect the electric current, which, as has been seen, was a condition precedent.

She doubtless would have a cause of action for use and occupation if rent had not been paid, but not on a complaint on the lease for rent reserved. But she has been overpaid and for more than the time the defendant actually occupied the premises.

The alleged waiver of electric power damages ” prevented an affirmative recovery or offset of such damages by the defendant; but it in no manner overcomes this obstacle to a recovery on the part of the plaintiff. It was not a waiver of the breach of plaintiff’s covenant, but only of any claim the defendant might have for affirmative relief therefor. The defendant did not subsequently ratify the lease, and his remaining in possession and paying rent was not, under the circumstances, either a waiver or ratification. (Lamare v. Dixon, 43 L. J. Ch. 203.)

These views require that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Judgment affirmed, with costs.  