
    ANDREW L. IRELAND, Plaintiff, v. WILLIAM H. NICHOLS and others, Defendants.
    
      [Decided April 30, 1870.]
    The old principle or rule, “ that the acceptance of rent under a lease, after a forfeiture^ is a waiver of the forfeiture,” reasserted and the leading cases reviewed.
    The Christie case, and the opinion of Chief Justice Robertson (5 Robertson, 169), reviewed and considered as not being antagonistic to the current of authorities that support the above rule, and as being in accordance with many cases cited, that hold substantially, that rent may be paid and received under circumstances that clearly show that it was paid and received without the knowledge or supposition of either party that thereby the forfeiture was waived; or that it was paid and received as a compensation for the use and profits of the land, and the intention of waiving the lease expressly negatived by both parties.”
    Where the forfeiture claimed was the breach of a condition not to underlet the premises without consent, etc., and there was but one underletting, held that the act of forfeiture was single and indivisible. The continuance of the same underletting, after rent had been paid, and thereby the forfeiture waived, cannot be considered as the breach of a continuing covenant, as illustrated in the cases of Ambler v. Wood-ride (9 Barn. & Cress., 376) and Fowler v. Peck (1 Bam. <& Aid,, 428).
    _ Before Monell, Freedman, and Spencer, JJ.
    TMs action was commenced in November, 1868, and was tried in November, 1869, before Mr. Justice Jones and a jury.
    The plaintiff, in his complaint, claims to recover possession of premises in the city of New York, known as Nos. 51 and 53 Eighth avenue, because of a forfeiture under a covenant of the lease of the same from plaintiff to defendants, stated in these words:
    “And the said party of the second part further covenants that he will not assign, let, or underlet the whole or any part of the said premises, nor make any alteration therein, without the written consent of the party of the first part, under the penalty of forfeiture and damages,” alleging that defendant William Henry Nichols had violated this covenant by underletting, etc.
    
      The defendant Nichols, by his answer, admitted the lease, and also the underletting of the premises, as alleged in the complaint, but alleged that plaintiff, after said underletting, waived the forfeiture which otherwise would have been incurred, and his right of .re-entry consequent therein; and notwithstanding such underletting the plaintiff, with full knowledge thereof, confirmed and affirmed the said lease, and' the tenancy of the defendant under the same.
    William Henry Nichols, a witness'for defendants, testified substantially as follows: That he was the lessee; that he underlet the premises in May, 1868; that John B. Ireland was plaintiff’s agent in the premises; he signed the lease in the name of plaintiff. “I told him (Ireland) I was going to underlet the premises. I told him after I had done it. I afterwards paid him the rent up to the 1st day of October, 1868.”
    The receipts of plaintiff for rent were introduced without objection. The last receipt is as follows:
    “ October 28, 1868. ¡Received of Mr. William H. Nichols ninety-three dollars and thirty-two cents, in full for rent of house No. 51 Eighth avenue, New York City, to November 1, 1868. A. L. Ireland, “ $93.32. ¡Per John B. Ireland, Attorney P ■
    
    The defendants rested. The following admissions were then made by the parties in court:
    
      K It is admitted that the parties to whom the premises were ■underlet in May, 1868, as testified to by witness Nichols, remained in possession, under such said contract of underletting made May, 1868, and not otherwise, until after the commencement of this action. This action was commenced by the service of a summons and complaint on the defendant on the 9th day of November, 1868. It is admitted that the mesne profits of said premises from the 1st of November, 1868, to the time of the .trial, amounted to the sum of two thousand nine hundred and .twenty dollars.”
    The plaintiff here rested his case, and the defendants requested the court to direct a verdict for the defendants. The court directed the jury to find a verdict for the defendants, to which ruling and direction the plaintiffs duly excepted. The jury, by the direction of the court, found a verdict for the defendants _ The exceptions were ordered to be heard at General Term in the first instance, and judgment in meantime suspended.
    
      Mr. Ira D. Warren for plaintiff.
    The underletting being admitted, the burden of proof was upon the defendants to prove a waiver (Lawrence v. Williams, 5 Duer, 385; Burrill’s Law Dic., vol. 1, page 507; see “ Forfeiture”).
    The receipt of rent by the landlord after the forfeiture of the lease by the tenant for violating the condition not to underlet, did not waive the forfeiture and re-establish the lease. The tenant was bound to pay the rent due, whether he had forfeited the estate or not.
    The fact that he had forfeited the estate, by violating one of the conditions upon which he held it, would not relieve him from his contract to pay the rent.
    The obligation to pay the rent remains, although the relation of landlord and tenant is gone ; the landlord has done no unlawful act which would defeat or impair his claim for rent, while the forfeiture is produced by a failure on the part of the tenant to do what he was bound to perform.
    They are entirely independent covenants and conditions.
    Had the forfeiture been incurred for the non-payment of rent, then the receipt of it would have waived the forfeiture.
    The forfeiture was for another and entirely independent cause, and had nothing to do with the rent. The tenant was bound to pay the rent notwithstanding the forfeiture.
    This precise question has been decided by the General Term of this Court (Importers and Traders’ Insurance Co. v. Christie, 5 Rob. Rep., 180).
    If the receipt of rent by the landlord waived the forfeiture, it did not waive it beyond the time he received the rent, where the original cause of forfeiture continued.
    
      The evidence shows that the rent was payable monthly in advance. The defendants paid the rent due on the first of October, 1868, which paid the rent up to the 1st of November.
    The defendants never paid the rent due on the first of November. This was a continuing condition (Doe v. Watt, 1 Mann’s R., 694). If the receipt of rent affirmed the lease, it was only on the same terms as before, and the landlord had a right to bring his action at any time for continuing the underletting, provided he had not received rent covering that time. Oontinuing the original underletting is tantamount to a new underletting, and a fresh breach of the condition every day it continued, and a new cause of action every day it continued (Stewart v. Hunter, 4 Sand. Ch., 591; Taylor, Landlord and Tenant, § 500; Bleecker v. Smith, 13 Wend., 532; Jackson v. Allen, 3 Cowen, 221; Doe v. Allen, 3 Taunt., 78).
    
      Mr. D. T. Walden for defendants.
    If a landlord, with knowledge of a cause for forfeiture by his tenant, does any act affirming the existence of the lease and recognizing the defendant as his tenant, and as lawfully in possession, he waives the forfeiture, and the tenancy continues notwithstanding the previous act of which he might have taken advantage (1 Parsons on Contracts (5 Ed.), 506; 2 Platt on Leases, 471; 1 Wm. Saund., 287 to 288; 1 Wash. on Real Pro., 424).
    The forfeiture is waived if the lessor with full knowledge of the cause for forfeiture accepts from the lessee rent under the lease which became due after the act of forfeiture (1 Wm. Saund., 287, do., 288; Doe v. Bliss, 4 Taunt., 753; 2 Platt on Leases, 471; Doe v. Woodbridge, 9 Barn. & Cress., 376, 377; 4 Man. & Ry., 302; Jackson v. Allen, 3 Cowen, 230; Pr. Sutherland, J., and cases cited; Bleecker v. Smith, 13 Wend., 530, 3, 4).
    There are cases where the acceptance of rent has been held not to be a waiver, for the reason that waiver being a question of intent, and neither party intending to waive the forfeiture or affirm the tenancy, the receipt was consistent with the claim of forfeiture (Jones v. Carter, 15 M. and W., 718; Doe v. Meaux, 1 Car. and P., 348; Manice v. Millen, 26 Barb., 41; Importers and Traders’ Ins. Co. v. Christie, 5 Robertson R., 169).
    ¡Notice to the agent was notice to the plaintiff; the agent made the lease, and acted in all respects for the lessor (Bk. of U. S. v. Davis, 2 Hill, 451; Sutton v. Dillaye, 3 Barb., 529; Weaver v. Denison, 10 N. Y., 68; Wilson v. Genesee Mut. Ins. Co., 14 ib., 418; McEowen v. Montgomery Co. Mut. Ins. Co., 5 Hill, 101).
   By the Court:

Spencer, J.

The main question to be considered and determined in this case is, whether the forfeiture incurred by the underletting in Hay, 1868, was subsequently waived by the act of the plaintiff in accepting rent under the lease, which became due after the act of forfeiture, and after the same became known to plaintiff.

I think this question would have been practically decided in the affirmative on the argument, had not the plaintiff’s counsel claimed that a negative conclusion had been reached by the General Term of this court in the case of The Importers and Traders’ Insurance Company v. Christie, reported in 5 Robertson, at pages 169 to 183, in which our late learned and honored chief-justicé delivered the opinion of the court.

After a full examination of the cases bearing upon this question, I have concluded that the main questions in this case and the Christie case are so broadly distinctive and different from each other that the decision of the court in the latter action in nowise governs or affects this case.

This question was argued and decided, in a very similar case, in the Court of ¡King’s Bench in the year 1778 (Goodright v. Davids, Cowper’s Reports, 803). The covenant in the lease against underletting is nearly identical with the covenant in this lease. Its breach was fully established, as also the facts that the lessor knew of the same, and with such knowledge received rent upon the premises, and afterwards brought ejectment to recover the premises because of a forfeiture under a breach of this covenant; and it appeared in that case as in this, that the under-letting continued after the payment of the rent, and until after the action was brought.

Thornton, counsel for the tenant, cited as the law in England the following paragraph from Coke on Littleton: If the lessor accept rent due at a day after, he shall not enter for the condition broken, because he thereby affirmeth the lease to have continuance.”

Lord Mansfield, in announcing the opinion of the court, says:

“ This case is extremely clear. To construe this acceptance of rent due since the condition lyrolcen a waiver of the forfeiture, is to construe it according to the intention of the parties. Upon the breach of this condition the landlord had a right to enter. He had full notice of the breach, and does not take advantage of it, but accepts rent subsequently earned. That shows he meant the lease should continue.”

This is one of the early English cases, but I believe that this construction has been held by the English courts, in an unwavering line of decisions, to the present time. I refer only to one or two later cases.

In Croft v. Lumly, Court of Queen’s Bench, reported 85 E. C. L. Reports, 647, and in the Court of Exchequer, page 681, and in the House of Lords, vol. 96, E. C. L. Reports, page 1070, this question of a waiver of the forfeiture by payment of rent was fully discussed.

In the House of Lords eight judges out of nine who heard the case expressed themselves clearly and fully in support of the doctrine as laid down in the earlier cases; and also that, in the case before them, if there had been a forfeiture, it had been fully waived by the receipt of the money which was offered as rent (and yet in that case the lessor refused to accept it as rent, although he took it from defendant when so offered).

Dendy v. Nichols (93 E. C. Law Reports, 376) is a case also in point. Crompton, J., says: “ If this action (ejectment) were to be held to be maintainable, this gross inconsistency would result, namely, that the plaintiff, having already recovered the rent to Lady Day, 1857, would recover the land by reason of the forfeiture in 1854, and mesne profits down to the time of the verdict.

The plaintiff has elected conclusively to treat the defendant as his tenant, and cannot afterwards turn around and make him a trespasser.”

This construction of the law has been followed by the American courts, especially the courts of this State. Judge Sutherland discussed this question in 1824 (Jackson v. Allen, 3 Cow., 230), and after citing many English cases, says: If the lessor, therefore, with a full knowledge of the forfeiture, had accepted rent which fell due after that event, the eases cited show it would have been a waiver.”

Chief-Justice Savage says (Bleecker v. Smith, 13 Wend., 534): Any act of the lessor which recognizes the lease as a subsisting operative contract, such as receiving rent wider it, is a waiver of the forfeiture.”

In the review of “Dumpor’s case” (Smith’s Leading Cases, 6 Am. ed., vol. i., part 1, page 89 and post), the learned author and editors have collected and cited nearly all of the early and later English and American cases relating to this question of waiver.

I have been unable to find any case that will support the position that is claimed by plaintiff’s counsel in regard to the case in 5 Robertson, yet I do find much good authority in support of that case without placing it in opposition to the current of authorities on this question of waiver that have been flowing in one direction for over a century.

In the Christie case (5 Robertson, 169) the rent in question was paid after the cause was at issue, during the pendency of the action of ejectment, and the learned justice before whom the same was tried states (as a finding of fact) that the payment by Christie of the quarter’s rent due on the 1st of May, 1866, and the receipt of the same by plaintiff, was without the knowledge or supposition of either party that such payment and receipt would affect the rights of the parties in the action, which was treated at the time as cm existing action. ¡Now, I hold that paying the rent under these circumstances is a very different act, and fraught with very different results, than if paid under the circumstances detailed in the case now under consideration. It has been held, in many cases, that the facts which form a case of waiver of forfeiture, through a payment of rent, make up a question of intent for the court or jury to pass upon, and some of the English judges have held, or suggested, that the question (which generally arises), Did the lessor, by receiving the rent, intend to waive the forfeiture?” should be, or might properly be, submitted to the jury as a question of fact.

Without further discussion of the extreme view of the question, I notice the following eases in support of the Christie case:

“ Bent may be received under circumstances showing it to be paid and accepted as a compensation for use of land, and not with the intention of setting up (setting up—restoring or renewing) the lease. Nay, a contrary intention may be expressed at the time of its receipt. A receipt for rent paid under such circumstances would not amount to a waiver of the forfeiture” (Doe v. Butten, 1 Cowp., 243).
“A receipt of rent after the lessor has, by unequivocal act, such as bringing an action in ejectment (as had been done in the Christie case), expressed his intention to treat the lease as void, cannot operate to revive it” (Jones v. Carter, 15 M. & W., 718).

In Manice v. Miller (26 Barb., 42), a decision of the General Term of the Supreme Court of the First District, a landlord was held to be entitled to re-enter for a breach of condition, caused by the non-payment of taxes, although the time of payment of the same had been extended, and rent had been received which had accrued during the interval, and after the period originally fixed for the fulfilment of the condition. The court held that the effect of the receipt of rent, or other prima facie evidence or admission of the continuance of the tenancy, was a question of intention, it being inferred, from the payment of rent, that both parties recognized the lease was valid, yet that the contrary might be shown by express proof. ' I consider the Christie case as a decision of the General Term of this court sustaining this doctrine: “ That the question, whether the reception of rent is a waiver of a prior forfeiture, is one of intent, to be considered and decided upon by the court or jury upon the facts arising in each case.”

It was contended, on the argument by the plaintiff’s counsel, that this covenant or condition of the lease in question is a continuing covenant, as illustrated by the cases of Ambler v. Wood-bridge (9 Barn. & Cress., 376), Fowler v. Peck (1 Barn. & Ald. 428). I think otherwise. It was stipulated on the trial (substantially) that there was but one underletting, and the under-tenant remained in possession under the same until after the commencement of this action. The act of forfeiture was single and indivisible. It was complete in May, 1868. There has been no repetition, no breach, but the one, which is the only one complained of.

Exceptions overruled, and judgment ordered for the defendants upon the verdict, with costs.

Monell, J.

(concurring). I concur in the opinion of my associate, that this case is distinguishable from the case of The Importers and Traders’ Insurance Company v. Christie (5 Robt., 169), and that, therefore, we are not concluded by that decision in determining the principal question in this case.

I desire, however, to say of that case, that it was decided without my knowledge or concurrence. For although I was a member of the General Term when it was argued, and heard the argument, I was not consulted in the decision, and never saw the opinion until it was published by the reporter.

The report of the decision indicates that I concurred in the opinion, which I never did, and from much of which I should have dissented had I had the opportunity of doing so; and I therefore wish now to place myself upon the record as dissenting from all such propositions in that opinion as are at variance with the view we now take of the law.  