
    Martha Garner, and others v. The Manhattan Building Association.
    In an action to recover the possession of real estate, a complaint which states that, on a day named, a person, whose, name is given, was in possession and seized thereof in his own right in fee, and died so seized and possessed; that the plaintiffs are his only heirs at law, and, as such, are seized in fee and entitled to the possession; that the defendant is wrongfully in possession, claiming title, and refuses to give up possession, though requested so to do, states facts constituting a cause of action.
    The defendants, by their answer, and by the evidence given at the trial, claiming a right to the possession under an unexpired lease, executed by the plaintiffs’ ancestor, in his life-time, held, that it was competent for the plaintiff to prove in reply any facts which put an end to the lease, or gave a right to the plaintiffs to require the possession to be given up to them, and the defendants’ possession to be wrongful.
    (Before Oakley, Ch, J., Bosworth and Hoffman, J.J.)
    Submitted, February 18;
    decided, March 28, 1857.
    This action comes before the court on an appeal by the defendants from a judgment entered on the report of a referee. It was commenced about the 25th of May, 1855, and was brought to recover the possession of certain real estate described in the complaint.
    The complaint states, that on and before the 1st of May, 1843, one John Garner, then of the county of Rockland, and state of New York, was seized in his own right in fee, and lawfully possessed of all that certain lot, piece, or parcel of ground, situate and being in the city of New York, and particularly describing it.
    The said John Garner died, so seized of the said lands and premises, some time in the said year 1843, intestate, leaving him surviving his widow, the said Martha Garner, and his children, and sole heirs-at-law, the plaintiffs, Frederick Garner", Mary Garner Ward, now the wife of the plaintiff, Adam H. Ward, and David Garner.
    The said plaintiffs, Frederick Garner, Mary Garner Ward, and David Garner, are seized in fee and entitled to the possession of the said lands and premises, subject to the life estate of the said Martha Garner, in one equal undivided third part of the same.
    That the said David Garner is an infant under the age of'twenty-one years, and that the said Adam H. Ward, by an order duly made by this court, has been appointed his guardian, for the purpose of prosecuting this action on his behalf.
    The defendants are a corporation or association organized under the laws of the state, and the plaintiffs have been informed and believe, that the defendants are wrongfully in possession of the said lands and premises, and wrongfully claim a right thereto, and, although often requested, have refused, and still refuse, to deliver up possession of the said lands and premises to the plaintiffs, and unjustly withhold the possession thereof from them.
    By reason of such continual wrong-doing on the part of the said defendants, the plaintiffs have sustained damage to the amount of three thousand dollars.
    Wherefore the plaintiffs demand judgment against the said defendants for said sum of three thousand dollars, together with the costs of this action; and also that the defendants deliver up to the plaintiffs possession of the said lands and premises, and every part thereof.
    The defendants by their answer made title, under a lease of the premises dated May 1, 1843, executed by John Garner to one Derrick D. Foster, for twenty-one years from that date; an assignment of the lease by Foster to Demarest, and by Demarest to John McDonald, and a mortgage of the premises by McDonald to the defendants on the 19th of November, 1851, to secure the payment of $4000 lent to him by the defendants, and a foreclosure of such mortgage, and a purchase of the unexpired term of the lease by the defendants at the foreclosure sale.
    The facts thus alleged in the answer having been proved, the plaintiffs put the lease from Garner to Foster in evidence.
    The lease contained these covenants on the part of Foster, the lessee, viz.
    
      “ And it is agreed, that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises, or to distrain for any rent that may remain due thereon. And the said party of the second part doth covenant to pay to the said party of the first part, the said yearly rent as herein specified.
    “And further, the said party of the second part shall, from year to year, during the term of the lease, pay, or cause to be paid, all ordinary and yearly taxes on said lot, assessments for public improvements herein excepted; which assessments shall be paid by the said party of the first part.”
    The plaintiffs proved—the defendants objecting and excepting to the admission of the evidence—that the tax on the lot and premises for the year 1853, being exclusive of interest $27.15, was confirmed on the 20th of July, 1853, was returned as unpaid in the month of June, 1854, and was paid in the following March by the plaintiff, it then amounting with interest to $32.28 ; that the taxes for 1854, amounting to $23.23, and the Croton water taxes for 1853 and 1854, amounting for each year to $10.35, remained unpaid until the 5th of March, 1855, when they were paid by the plaintiffs.
    The last payment of rent made under the lease was made on the 22d of November, 1854, and in full for rent up to the first of that month. Neither of the plaintiffs then knew of any of the defaults in the payment of taxes.
    The referee decided that the plaintiffs were entitled to the possession of the lands and premises, that the defendants wrongfully withheld the possession from them, and that the plaintiffs recover the possession. No exceptions were taken to this decision. Judgment having been entered on the report, the defendants appealed from the judgment.
    
      A. B. Tajipen, for defendants and appellants,
    made and argued the following points:—
    I. The complaint does not state facts sufficient to constitute a cause of action. 1. Under the statute, the plaintiff should aver ip his complaint, that on some certain day, which shall be after his title accrued, he was possessed of the premises, and that being so possessed thereof, the defendant on some certain day to be stated, entered, etc.; there is no such averment in the complaint. (2 R. S. 4 ed. 566 ; 10 Wend. 414; 2 Duer, 673 ; 6 Cow. 147.)
    II. The issue upon which this action was determined is not presented by the pleadings, and the referee erred in admitting the testimony. If the plaintiff claimed a forfeiture of lease as the ground of action, the defendant ought to be so advised, and all the material facts should be averred to raise the questi on oí forfeiture. The unlawful withholding is a question of law. The courts have always been strict in their requirements to prevent forfeitures. (2 Duer, 673, above cited; 5 Denio, 129.)
    III. The taxes reserved in the lease are in the nature of a reservation of -rent, (Taylor’s Landlord and Tenant, 2d ed., § 395,) aud a complaint in ejectment for rent would not be good without full averments. (2 Revised Statutes, 4 ed. 750.)
    IY. If taxes be not in the nature of a reservation of rent, the landlord must show a demand in order to sustain his action. (17 Johns. 66.)
    Y. The covenant to pay taxes does not, in the lease in question, bind the assignee of the lessee, and therefore does not run with the land. The assignee is liable only for his own default. (15 Johns. 278; 4 Selden, 468, and cases there cited.)
    YI. The plaintiffs received rent after the time when it appears by the tax records the taxes were unpaid, and this is a waiver of forfeiture. If the defendants are to be charged with knowledge of the tax from the tax books, so also are the plaintiffs. The tax books are public records. (See Act in relation to taxes in the city of New York, 1 R. S. 4 ed. 763.)
    YII. Ko taxes were unpaid at the commencement of this action. If the plaintiffs paid them, they have an action for re-imbursernent. The evidence shows that the defendants used due dilligence in ascertaining and paying all arrears, and the plaintiffs’ own act, in paying the taxes while McDonald was in possession, and in omitting to bring their action until long after defendants purchased, is a waiver of forfeiture.
    YIII. The plaintiffs, having violated their covenant for payment of assessments, cannot maintain an action against the defendants, while they, the plaintiffs are in default.
    
      IX. The assignee of the reversion has not the right of re-entry, unless the covenant is with the lessor, his assigns, etc. (Comyn’s Landlord and Tenant, 151.)
    X. The referee’s report is erroneous, and the judgment thereon should be reversed.
    
      Geo. A. Schufeldt, for plaintiffs and respondents.
   By the Court. Bosworth, J.

But one exception was taken during the progress of the reference, and no exception was taken to the final decision of the referee. At all events no such exception appears in the case. Only two questions of law arise on this appeal. Those questions are, first, does the complaint state facts sufficient to constitute a cause of action ? and second, is the exception, which was taken during the trial, tenable ?

The defendants, in their printed points, take the position that the complaint does not state facts sufficient to constitute a cause of action. This objection may be raised in any stage of the action. (Code, § 148.)

The complaint states that John Garner was seized of the premises in question, in his own right in fee, and was in the lawful possession of them on and before the 1st of May, 1843. That he died so seized, in that year, intestate, leaving one of the plaintiffs, his widow, and the other plaintiffs, his only heirs-at-law him surviving.

That those named as heirs are seized in fee, and entitled to the possession, subject to the life estate of the widow in an undivided third part thereof. That the defendants are wrongfully in possession, and claim a right thereto, and although often requested, have refused, and still refuse, to give up the possession, and unjustly withheld possession from the plaintiffs, and prays j udgment that they deliver up possession to the plaintiffs.

We think there can be no doubt, that such a complaint, under the Code, is good on general demurrer. (Code, §§ 142, 471.)

The objection taken during the progress of the trial was general, and was to the effect, that no evidence was admissible, under the pleadings, to show the non-payment of taxes or the breach of any of the covenants contained in the cause.

It was competent for the plaintiffs to prove any matter which, in legal effect, would avoid the lease, and prevent its operating as a bar, or obstacle, to the plaintiffs’ right to recover. The Code performs, for the plaintiffs, the office of a pleader, who can commit no mistake, in replying to an answer which sets up, by way of defence, new matters, not constituting a counter-claim. It pleads for him, and in proper form, in avoidance of the answer, any matter which it is in bis power to prove, and which is sufficient to accomplish that result. (Code, § 168.)

It follows that neither of the questions of law, which the defendants are permitted to raise on this appeal, is tenable.

The ease of Garner v. Hannah, decided at the October General Term, 1856, is decisive of all questions in this-case relating to the merits. Ante, 262.

The judgment must be affirmed, but with liberty to the defendants in this action, by notice, or on petition, to apply for such relief against it as they may be advised, and without prejudice to their right to bring an action to obtain such relief, if so advised.  