
    Chautauqua Assembly, Resp’t, v. Ethan L. Alling, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December, 1887.)
    1. Lease—When voidable at election of the lessob.
    The plaintiff’s assignor “ The Chautauqua Camp Meeting Association ” executed a lease of a lot on the grounds of said association to third parties for the term of ninety-nine years at a rent therein specified. The defendant claimed to have acquired the interest of the lessees in said lot and lease by divers mesne conveyances. The habendum clause in the lease declared that the lessees and their assigns were to have and to hold the leased premises “ for a cottage or tent for a private residence ” and the lease provided that in case of non-payment of rent or of default in any of the covenants and agreements therein contained on the part of the lessees, the lessor might re-enter and take possession, paying to the lessees or their assigns for any cottage or building then upon said premises at a fair valuation to be ascertained by persons to be chosen by the parties, as in the lease provided. The assignments were contrary to a covenant on the part of the lessee not to assign without the consent of the lessor in writing. Held, that the assignments were not absolutely void, but voidable only at the election of the lessor, or its assigns. They passed the title, subject to the consequences of the breach.
    2. Same—How bbeach of covenant could be availed of by lessob.
    
      Held, that if the lessor or its assigns chooses to avail itself of the breach it could only do so by re-entering, as provided by the lease or by pursuing such other legal remedy as the right of re-entry confers.
    8. Same—Bbeach of covenant—When waived.
    The prayer for relief in the complaint for was an injunction to restrain and limit the defendant in the use of the premises. Held, that it was a waiver by the plaintiff of the alleged forfeiture arising from the breach of the covenant not to assign.
    4. Same—Agbeement in—When independent contbact.
    The stipulation as to the manner in which the value of the building, etc., should be determined in case of a breach was not collateral merely, but an independent contract to pay such sum as shall be fixed in the manner provided. The sum must be fixed by the tribunal agreed on. by the parties and not by the court.
    5. Same — Covenant in 'bestbaint of beneficial use, when not implied.
    In a lease a covenant in restraint of a beneficial use of the property will not be implied. A covenant not to use the premises for any other purposes will not be inferred from the words to be used “ for a cottage,” etc. But the use made of it must not interfere with or be inconsistent with its use as prescribed.
    6. Same—Constbuction of limitations in.
    The last clause of the lease in question subjects the holding of the lessees to the constitution and by-laws of the association. The by-laws, rules and regulations of the camp meeting association forbid the keeping of boarders and lodgers for hire on the grounds of the association by any person whomsoever, without the special consent of the corporation. Held, that said rules, etc., were reasonable and such as the association had the right to make and that the lessees were subject to them and bound to comply with them by virtue of the last clause.
    
      V. Same—Right of assignors.
    The said camp meeting association having assigned its interest of every kind in the tract of land, etc., to plaintiff after the making of the lease in question. Held, that each party succeeded to the rights and liabilities of his assignor under the lease, no more and no less, The defendant in keeping hoarders and lodgers for hire is violating a by-law enacted by the lessors, which was binding upon the lessees and which the plaintiff had the right to enforce against him.
    Appeal from a judgment entered on the report of a referee.
    
      Frank W. Stevens, for app’lt; Holt & Holt, for resp’t.
   Smith, P. J.

On the„20th of June, 1873, the plaintiff’s grantor, “The Chautauqua Lake Camp Meeting Association,” a domestic corporation, executed a lease of a lot on the grounds of said association, at Chautauqua, to Jane A. Losee and Kate Taber, for the term of ninety-nine years, at a rent therein specified. Subsequently, the association conveyed its grounds, including the reversion of the lot so leased, to the plaintiff. The defendant claims to have acquired the interests of the lessees in said lot and lease, by divers mesne conveyances. The habendum clause in the lease declared that the lessees and their assigns were to have and to hold the leased premises “for a cottage or a tent for a private residence,” and the lease provided that in case of non-payment of rent or of default in any of the covenants and agreements therein contained, on the part of the lessees, the lessors might re-enter and take possession, paying to the lessees or their assigns, for any cottage or other building then upon said premises, at affair valuation to be ascertained by persons to be chosen by the parties as in the lease provided.

The judgment herein declares that by reason of default on the part of the lessees in certain, covenants and agreements on their part in the lease contained, the lease be annulled and rescinded, on payment to the defendant of the sum of five hundred dollars'; it adjudges that, the defendant acquired no title to the said lease or the leasehold estate, and it enjoins him from keeping boarders or lodgers for hire on said lot.

In all respects, the judgment follows the findings of the referee, and the appeal is to be determined upon the findings alone, none of the evidence being contained in the appeal book.

The finding that the defendant acquired no title to the lease, is based upon the fact that the several assignments under which he claims, were made without the consent of the lessor, contrary to a covenant on the part of the lessee, not to assign without the consent of the lessor, in writing. This finding cannot be maintained, for several reasons.

First. Assuming (as the plaintiff contends), but without deciding, that the covenant not to assign is one running with the land, and may, therefore, be enforced by the plaintiff as the assignee of the lessor, still the finding is erroneous. The several assignments of the interests of the lessees are not absolutely void, they are voidable only, at the election of the lessor or its assigns. They pass the title, subject to the consequences of the breach.

Second. If the lessor or its assignee chooses to avail itself of the breach, it can only do so by re-entering as provided by the lease, or by pursuing such other legal remedy, as the right of re-entry confers. Shattuck v. Lovejoy, 8 Gray, 204.

Third. The prayer for the relief granted in this action, by way of injunction to restrain and limit the defendant in the use of the premises, is a waiver by the plaintiff of the alleged forfeiture arising from the breach of the covenant not to assign, it being inconsistent with the idea that the right of the defendant to. occupy under the lease is at an end. By bringing an action to obtain such relief, the plaintiff recognizes a continuance of the tenancy, and the act is an election on its part to hold the tenant to the lease. Murray v. Harway, 56 N. Y., 342. The fact that the plaintiff, in the same action, asks that the lease be declared forfeited, and that it be adjudged to be rescinded and annulled, makes no difference. No judgment is asked for by way of enforcing such declaration. A court of equity will not enforce a forfeiture; equally foreign to its, functions is it to declare, as an absolute proposition, that a forfeiture has occurred.

The remarks contained in the third subdivision above stated, apply not only to the declaration in the judgment that the defendant acquired no title, but also the adjudication that the lessees have made default in the covenants and agreements on their part contained in the lease, and that the lease is therefore voidable by the plaintiff, and is thereby annulled and rescinded, upon payment to the defendant of the sum of $500.

The latter adjudication is faulty in another respect. The sum of $500 thereby required to be paid, is probably intended as compensation for the value of the cottage which it appears the lessees erected upon the premises. That provision of the judgment ignores the stipulation in the lease, that such value shall be determined by a tribunal to be selected for the purpose as therein provided. The stipulation is not collateral merely, but is an independent contract to pay such sura as shall be fixed in the manner provided. Scott v. Avery, 5 H. of L. Cas., 811; The President of the D. and H. Canal Co. v. The Pennsylvania Coal Co., 50 N. Y;, 250. The sum must be fixed by the tribunal agreed on by the parties and not by the court.

The injunction clause of the judgment restrains the defendant from keeping boarders or lodgers for hire, and from furnishing board, lodging or food for pay or for hire on the lot leased. It is contended by the counsel for the respondent that such use is a breach of the covenants by which the tenant is bound.

The lease executed by the camp meeting association to Losee and Taber recited that the lands of which the lot-leased was a part, had been purchased and were held by said association for the purpose of holding camp meetings-thereon and for such other purposes as are not inconsistent-therewith. The habendum clause stated, as, has been already noticed, that the premises leased were to be held by the lessees and their assigns for a cottage or tent for a. private residence. And the lease contained a covenant on the part of the lessees, that they or their assigns should not use the said premises, nor permit the same to be used, for any purpose inconsistent with the general purpose and design for which the grounds of said association were to-be used, as above mentioned, “the standard doctrines and usages of the Methodist Episcopal church being the rule by which such shall be adjudged, and no intoxicating drinks-are to be used on said demised premises as a beverage.” The lease, also, provided that on paying the rent and performing the covenants on their part, the lessees and their' assigns might peaceably and quietly hold and enjoy said premises, during the term of the lease, subject to the laws- and constitution of said association. The referee has found that there is a framed house upon the lot which the defendant uses as a private residence for himself and his family during the entire year, and that he also keeps boarders and lodgers therein for hire, without the consent of the plaintiff and against its will.

The plaintiff’s counsel contends that the habendum clause amounts to an express covenant on the part of the lessees-not to use the premises for any other purpose than the one there mentioned. Perhaps, the clause may be regarded as a covenant by the lessees to put the premises to the use therein specified, and not to put them to any use incompatible therewith. But it can hardly be held to include any additional use that does not interfere with the use specified. There are no words of restriction, such as that the premises shall be used “only” or “solely” for a private residence. It has been held that in a lease, a covenant in restraint of a beneficial use of the property will not be implied. Thus, a covenant not to use the premises for any other purpose, will not be inferred from the words “to be used as a cabinet warehouse. ” Brugman v. Noyes, 6 Wis., 1. In French v. Quincy (3 Allen, 9), it was held that letting portions of a town building for stores and the like was not a violation of the deed which conveyed the land to be used only as a town hall. In Button v. Ely (11N. Y., State Rep., 623), lately decided by us, there was a bequest of money to the town of Franklinville to be expended in purchasing a site and erecting a building, two stories in height, the lower floor of which was “ to be used forever as a town hall and offices for the town in its . corporate capacity.” It was held that leasing a portion of the lower floor to a United States deputy postmaster, to be used as a post office, was not a violation of the constitution. In each of these cases the use prescribed by the condition was not interfered with. The case of DeForest v. Bryne (1 Hilt., 43), relied on by the respondent’s counsel, is distinguishable from them, inasmuch as the character of the bufldings which the lessee had erected on the lot demised, was such as to render it impossible to use the lot “as a lumber yard,” as required by the condition in the lease.

The further question arises whether the defendant has put the building to a use inconsistent with, or preventive of, the use prescribed by the lease. The finding is, that in the cottage on the premises which the' defendant uses as a private residence, he keeps boarders and lodgers for hire. It does not appear that his doing so has interfered in any way with his use of the premises as a private residence. There is no finding as to the number of his boarders, or the length of time he has kept them. The most that can be claimed from the finding is, that more than one person has boarded and lodged with the defendant in his family, for some portion of time since the first day of July, 1887, when the defendant took an assignment of the lease. We think, therefore, there is nothing in the habendum clause which should be held to restrain the defendant from doing what he is shown to have done, by way of keeping boarders and lodgers for hire, at his residence.

But the last clause of the lease subjects the holding of the lessees to the constitution and by-laws of the association. The constitution provided, among other things, for licensing boarding tents, and making rules for their government, by certain officers of the association. The by-laws of the camp meeting association do not appear in the appeal book, but the referee has found that the by-laws, rules and regulations of the association forbid the keeping of boarders and lodgers for hire, on the grounds of the association by any person whomsoever, without the special consent of the corporation. It is also found that Losee and Taber did not keep boarders or lodgers for hire, and were not permitted to do so, while said corporation owned the grounds. It is also found that said corporation on its own account built boarding and lodging houses on said;grounds for the accommodation of its patrons, and provided the means of keeping boarders and lodgers for hire as the exigencies of the case required, and "made special contracts with such persons as it selected to do, for it, the business of boarding and lodging for hire according to the necessities of the case.

The rules and regulations thus made and enforced were reasonable, and such as the association had the right to make. In our opinion, Losee and Taber were subject to them and bound to comply with them, by virtue of the last clause in the lease, which was a limitation of the rights and interests thereby demised. The whole instrument is to be looked at in determining what was intended to be conveyed.

It appears, however, that after the making of the lease, the camp meeting association sold all its rights in the grounds, including the reversion of all lands leased by it, and that such rights and reversions, including the reversion of the lot leased to Losee and Taber, have been acquired and are now held by the plaintiff, also a domestic corporation organized for purposes in harmony with those of the camp meeting association.

From this fact, the counsel for the respective parties deduce opposite results. For the respondent, it is contended that the defendant is subjected to the by-laws of the plaintiff, which, in plain terms, forbid the keeping of boarders or lodgers on the grounds, for hire. While the appellant’s counsel contends that by the transfer, the bylaws of the camp meeting association ceased to be of force. We think neither position can be maintained. In our opinion, on the one hand, the lessees and their assigns are not subject to new and additional restrictions created by the assignee of the lessor, and on the other hand, the restrictions imposed by the by-laws of the plaintiff are in force so long as the assignee of the plaintiff chooses to con-, tinue them. In other words, each party succeeds to the rights and liabilities of his assignor, under the lease, no more and no less. If these views are correct, it follows that the defendant in keeping boarders and lodgers for hire is violating a by-law enacted by the lessor which was binding upon the lessees and which the plaintiff has the right to enforce against him. The result is that the judgment, so far as it grants an injunction, should be affirmed, and in all other respects, reversed.

Counsel on each side having agreed on the argument, that if we conclude that the judgment should stand as to one branch of relief, and not as to the other, the judgment may be modified accordingly, we direct it to be so modified, instead of sending the case back for a new trial.

The judgment should be modified accordingly, by striking out all except that portion, which grants the injunction, and as so modified affirmed, without costs of the appeal to either party.

Barker, Haight and Bradley, JJ., concur.  