
    Lewis v. Ocean Nav. & Pier Co.
    
      (Supreme Court, General Term, Second Department.
    
    February 11,1889.)
    "1. Landlord and Tenant—Extension of Lease—Waiver of Forfeiture.
    A lease permitted the lessees to erect a building on the premises, which they were authorized to remove at the expiration of their term, if all rents should be fully paid; but, if such rents were not so paid, the building was to be forfeited to and become the property of the lessor. When the last installment of rent became due, the lessortold the lessees to go on and pay the balance of the rent, and that they could remain there another year, and continue the business for which the building was used, and would be able to make up the next season. The lessees accordingly paid all hut §150 of the rent before the expiration of the original term, and paid the balance due for that term while in possession early in the following year. Held, that this arrangement constituted an extension of time for payment of the rent, and a waiver of all rights of forfeiture.
    •3. Same—Time of the Essence of the Contract.
    Full payment of rent for the original term having been made, though not until after the term expired, and no entry or attempt to declare the forfeiture having been made before such payment, no forfeiture resulted under the terms of the lease; time not being of the essence.
    On exceptions from circuit court, Kings county.
    Action by Warren H. Lewis against the Ocean Navigation & Pier Com•pany to recover the value of a building alleged to have been converted by defendant. The complaint was dismissed, and plaintiff’s exceptions directed to .be heard at general term.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      M. A. Smith, for plaintiff. Win. C. De Witt, for defendant.
   Dykman, J.

The defendant made a lease to the plaintiff and another of • certain premises at Coney Island for two seasons, terminating with the close • of the season of 1885. By the terms of the lease, the lessees were to con.struct a building upon the demised premises, which they were authorized to remove at the expiration of their term, if all rents and arrearages of rents .should.be fully paid; but, if such rents were not so paid, the building was forfeited to and became the property of the lessor, the defendant. When the lease came to an end, the lessees were in arrears with their rent, and then owed the sum of $150 therefor, which was subsequently paid by the plaintiff. The lessees continued to occupy the building so erected by them upon the demised premises until the month of May, 1886, when they were summarily rejnoved for holding over after the expiration*of their lease. The defendant prevented the removal of the building by the lessees, and this action was= brought for the recovery of the value thereof and its appurtenances; the co-lessee of the plaintiff having assigned to him his interest in the cause of action. The complaint was dismissed, upon the trial, at the close of the plaintiff’s case, and the exceptions taken by the plaintiff were directed to be heard at the general term.

If the severe and unrelenting principles of the common law relating to the-subject of forfeitures for the non-performance of conditions are to be applied, to this case, then the rulings of-the trial judge dismissing the plaintiff’s com-' plaint in this action may be upheld and affirmed, under the rules of law pertaining to that subject; otherwise, they are erroneous, and cannot be sustained. We must therefore furnish the solution to that question. It was. within the contemplation of the parties to the lease, and provided in that instrument, that a building should be erected upon the demised premises by the-lessees, in accordance with plans and designs to be approved by an officer of the company, which should be used and occupied by them for the purposes of the business to be conducted at that place during the continuance of their term, and removed by them at the expiration of their lease, if all the rents and arrearages of rents should be fully paid. _ If not so paid, the building-should be forfeited to and become the property of the lessor. Under and in pursuance of the authority so conferred, and in reliance upon the rights and privileges so secured, such a building was erected and occupied by the lessees-during the two seasons embraced in and covered by the lease; and when the-last payment of $250 became due and payable in July, 1885, the president of the company directed the plaintiff to go on and pay the balance of the rent, and said he could remain there another year, and run it the same way, and he-would be able to make all up the next summer. Then the plaintiff paid all the rent for the year 1885 during that season, except the sum of $150, which, he paid in February, 1886. We think this last arrangement with the president constituted an extension of the time for the payment of the rent, and a. waiver of all rights which might have accrued to the company by reason of a. failure to pay when the rent became due by the terms .of the lease.

We also think there was no forfeiture of the building under the terms of the lease. By that instrument the lessees were entitled to remove the structure at the expiration of the lease, if the rent was fully paid; and, “if not so paid,” that is, if not fully paid, the building was' to be forfeited; and so,, conversely, if the rent was fully paid, then no forfeiture resulted. Time was not made the essence of the contract, nor an important element in any respect. If the rent was fully paid, there was no forfeiture, and it was fully paid and. accepted. If these parties entertained the design to make the forfeiture of the-building dependent upon the failure to pay the rent when it became due, they would have expressed such intention in appropriate and decisive language. So much may fairly be assumed; and when, instead of employing any language expressive of such a design or intention, we find a plain expression of a purpose to make the forfeiture dependent upon the ultimate failure to pay the rent in full, we cannot hesitate to find such to have been the intention of' all parties. Moreover, the conduct and conversations of the parties have been in full harmony with such an interpretation of the lease. Ho measures were-taken to enforce the forfeiture, or re-enter upon the premises, when the lessees failed to pay the rent. On the contrary, further time was granted for payment, and encouragements were held out for the occupation of the premises another year; and when, finally, the determination was reached to turn, out the tenants, no re-entry was made, and no claim of forfeiture was inter^ posed, but a resort was had to summary proceedings, under a claim that the tenants were holding over after the expiration Of their term. The provision for a forfeiture was evidently inserted in the lease as a security for the payrneiit óf the rent reserved, and when the rent was paid its office was performed, and its operation was at an end; and to allow it any further operation would be a perversion of its intention, and convert it into an instrument of oppression and confiscation. The lessor was only entitled to receive the rent reserved in the lease, and when that was paid it was in natural justice entitled to no more. This corporation can insist upon no construction of the lease which would enable it to grasp and convert the building in question without the payment or loss of a single dollar, when a contrary view is so much more consonant with justice and the intention of the parties. This examination, therefore, leads us to conclude that the dismissal of the complaint was erroneous, that the exceptions were well taken, and a new trial should be granted, with costs to abide the event. All concur.  