
    Thomas R. O’Neill, Respondent, v. Bryan Morris, Appellant.
    (County Court, Onondaga County,
    July, 1899.)
    1. Action for rent — Eviction.
    Where mortgaged premises, rented under a lease requiring monthly payments, have been sold in foreclosure by the sheriff, and the sale has not been confirmed, and the purchaser has not taken possession under the sheriff’s deed, there is no eviction, and the tenant remains liable to the mortgagor 1'or the rent.
    3. Same — Apportionment of rent — Breach of covenant of possession.
    The landlord cannot, however, recover rent of the tenant for so much of the month as had elapsed prior to the sale; first, because section 2720 of the Code of Civil Procedure, relative to apportionment, forbids a severance of the cause of action for the month’s rent; and, second, because, if the sale terminated the possession, the landlord has violated the conditions of the lease.
    3. Same — Amendment of complaint on appeal.
    An amendment of such a complaint, requested upon an appeal from a judgment of the justice of the peace, should only be allowed upon terms that will as nearly as possibly place the appellant in the position which he occupied before the trial.
    On April 22, 1898, the plaintiff O’Neill was the owner of certain real property situate corner of Park avenue and Geddes street, Syracuse, N. T., and on that day he and the defendant executed a lease in writing whereby he leased to the defendant the lower floor of the above premises for the term of one year, beginning May 1, 1898, and to end May 1, 1899, for the sum of $300, $25 payable at the end of each month. On October 29, 1898, a judgment in foreclosure Was entered in an action brought by one Frances E. Bondy to foreclose a mortgage upon the above premises, in which action the plaintiff and defendant were parties. A sale was had under the judgment on November 25, 1898, and the premises were purchased by the mortgagee, Frances E. Bondy, and a deed of the premises was delivered to her by the sheriff on November 29, 1898, which was recorded on the same day. The judgment-roll (stipulated by the parties to this appeal to be considered in evidence) contained the usual provision contained in judgments in foreclosure actions: “That the purchaser or purchasers at such sale be let into possession on production of the sheriff’s deed and a certified copy of the order confirming the report of sale.” There is no evidence that the sale has been confirmed. It was conceded upon the trial that the defendant went into possession under the lease above mentioned and continued in possession until the trial. It also appeared that the agent of the purchaser of the premises informed the defendant of the sale on the day that the same took place and told him that the lease from Mr. O’Neill was abrogated by the sale. The action was brought in the Municipal Court of the city of Syracuse. The plaintiff’s complaint was: “For rent twenty dollars for month of Nov. 1st to 25th.” Judgment was rendered in favor of the plaintiff for damages, $17.34, and the costs; from such judgment this appeal is taken.
    Upon the argument the plaintiff’s counsel moved for leave to amend the complaint so as to claim for entire month of November. By consent the decision of the motion for leave to amend was reserved to be decided with the case.
    Frank Hopkins, for appellant.
    Lewis & Crowley, for respondent.
   Ross, J.

It is claimed by the defendant-appellant that there ivas an eviction in November, before the rent became due, and that no recovery of a portion of a month’s rent can be had in this case. I think the evidence fails to show an eviction, while it is true that the title passed by the sheriff’s deed of November twenty-ninth. Fort v. Burch, 6 Barb. 60; Fuller v. Van Geesen, 4 Hill, 171; Farrell v. Noel, 17 App. Div. 323.

In Giles v. Comstock, 4 N. Y. 274, Taylor, J., says (p. 274): “ The deed alone, without the order and before confirmation, was sufficient to sustain a suit in éjeetment against a Avrongdoer, for if there were any doubt of such a proposition, says Judge Cowen, all question would be removed by the doctrine of relation; the sale and deed being afterwards confirmed, by an order, this related to the date of the deed, thus overreaching the claim of a mere intruder into the premises. Fuller v. Van Geesen, 4 Hill, 172. But no where do I find that the courts have gone the length of sustaining an eviction of .one in rightful possession before the time fixed by the decree for the surrender of possession.”

The possession of the defendant was lawful; it presumably continued until it is affirmatively shown to have been terminated by the expiration of the lease, or by the violation of its provisions upon the part of the tenant followed by a judgment of dispossession, or by the judgment of a competent court establishing the right of possession by one claiming under a paramount title. The conditions upon which the purchaser under the foreclosure was entitled to possession, i. e., production of a sheriff’s deed and a certified copy of the order of the sale, have not, so far as appears in the evidence, been performed. The eviction to be a defense must have taken place before the rent became due, in this case before November 30, 1898; no proof is offered to show that this ever has taken place. Giles v. Comstock, 4 N. Y. 270, 275; Whalin v. White, 25 id. 464; Clason v. Corley, 5 Sandf. 447; Peck v. Knickerbocker Ice Co., 18 Hun, 183.

The passing of title is not of itself an eviction.

If the foregoing is correct, had the plaintiff sued to recover the rent for the month of November, the facts before me would sustain a recovery. It is, however, evident that the plaintiff did not seek a recovery of the rent for the month of November. This is evident from the language of the complaint For rent twenty dollars for Nov. 1st to 25th.” There being not only an expressed limitation upon the time for which a recovery is sought, first to twenty-fifth; but the amount demanded, twenty dollars, shows that the plaintiff sought to recover for a portion of the rent. In other words, assuming that his estate terminated upon November twenty-fifth, and that there could be no apportionment of rents, the amount of the judgment for damages (seventeen dollars and thirty-four cents) recovered shows conclusively that the court below proceeded upon the claim of apportionment of rent. There can be no apportionment of rent in this case, and consequently no recovery upon such claim. Prior to the enactment of chapter 542, Laws of 1875, there could be no apportionment of rents in the absence of agreement or statute between landlord and tenant in respect to time. Zule v. Zule, 24 Wend. 76; Mayor v. Ketchum, 67 How. Pr. 166.

The provision of the act of 1875, re-enacted in section 2720, Code of Civil Procedure, prohibits a severance of actions for apportioned parts of rents, “ but the entire rents of which such apportioned parts formed parts, must be collected and recovered by the person or persons who, but for this section, or chapter five hundred and forty-two of the laws of eighteen hundred and seventy-five, would have been entitled to the entire rents.” There is no such person or persons in this case. The plaintiff could not recover the entire rent for the month of November (that is, assuming the termination of his estate on November twenty-ninth), because his estate had terminated before the rent became due. The purchaser upon the foreclosure sale could not recover. Cheney v. Woodruff, 45 N. Y. 98.

But there is another difficulty beyond the limitation of the statute, a difficulty which is elementary, that is, there can be no recovery by the plaintiff for a portion of the rent because, if the estate of the plaintiff ceased before the rent became due, he violated the terms of his agreement and cannot recover upon an agreement he has broken. The tenant in the case of People v. Globe Ins. Co., 65 How. Pr. 81, was not a wrongdoer, had violated no provision of his agreement; but sought to recover back the proportion of the rent paid in advance under protest, which related to the time after the termination nf the landlord’s estate; the landlord, the receiver of the defendant, was ordered to restore the amount so claimed. In the case of Cummings v. Rosenberg, 6 Misc. Rep. 538, the rent was payable monthly in advance and the landlord was allowed to recover the entire rent for the month of February, although the tenant was evicted on the eighteenth of the month under a judgment of foreclosure in which the landlord and tenant, the plaintiff and defendant, were parties. This judgment may possibly be correct because at the time the rent became payable the landlord had not violated the terms of his agreement; but I respectfully dissent from the statement in the opinion, not necessary to the decision of the case, if it was not for the fact that the pleadings admitted that the rent was payable monthly in advance, the plaintiff would only be entitled to rent up to Feb. 18th.” (The time of the surrender of the premises to the purchaser.)

For the foregoing reasons the plaintiff cannot recover upon the claim he has made. Ordinarily, substantial justice will be promoted by a decision of a cause of action upon the merits rather than that a meritorious cause of action should be defeated by an erroneous pleading. The plaintiff should, in furtherance of justice, be allowed to amend his complaint.

But notwithstanding the liberality of the courts in allowing the pleadings in Justices’ Courts to be amended upon appeal, I think that before an amendment is allowed upon appeal the adverse party should be either given ample time to prepare for such new issue in the case of a new trial, or in the case of an appeal of this character upon questions of law should be as nearly as possible placed in the position he occupied before he acted upon the claim made by his adversary. The contention of the defendant’s counsel, that there can be no apportionment of rents, in this case is correct, and to allow an amendment to sustain an appeal, without terms, would be to reward his knowledge of the legal situation with the requirement that his client pay a bill of costs.

Nearly all of the cases cited by the plaintiff’s attorney upon this branch of the case, were instances of amendments allowed or refused by the justice before or during the trial; or cases tending to show the liberal construction given to pleadings in .Justices’ Courts. In the case of Argersinger v. Lever, 17 Civ. Pro. 352, the plaintiff was allowed to amend his complaint upon an appeal upon questions of law, but costs were imposed as a condition of such amendment. The County Court in that case had to either affirm or reverse, not having the right to grant a new trial upon such terms as are just, as is given this court by the provisions regulating appeals from the Municipal Court of the city of Syracuse. Laws of 1898, chap. 530, § 5.

The claim by the plaintiff’s attorney that the objection to the form of pleading was waived by not demurring or specifically objecting upon the trial is not well taken, as the complaint was sufficient upon its face; the evidence offered was admissible, the plaintiff could not be compelled to change his claim to one that was valid, and the defendant has had to appeal to legally determine that such an amendment as is asked is necessary.

The plaintiff’s application to amend his complaint is granted and he may amend the same as he may desire, not, however, to claim more than the rent for the month óf November, upon payment of ten dollars costs of such amendment and the disbursements of this appeal. The judgment is reversed, without costs, and a new trial ordered before W. G. Cady, one of the judges of the Municipal Court of the city of Syracuse, at a time on the day of , 1899. (To be fixed in the judgment to be entered herein.)

If, however, the plaintiff does not elect on or before the day so fixed in the judgment to be entered herein, to amend his complaint, and to pay the costs imposed as condition of such amendment or discontinuance, in that event the judgment is reversed, with costs.

Judgment reversed, with costs.  