
    Lawrence v. Williams and others.
    (Before Duer, Bosworth, and Emmet, J.J.)
    Feb. 11, 26, 1853.
    When the breach of a covenant in a lease, not to underlet without the consent of the landlord, is alleged, if the fact of underletting is proved or admitted, it is matter of defence, that the consent of the landlord was given, and the burden of proof is cast upon the defendant.
    Where the lease contains a clause of re-entry for the breach of any covenant by the lessee, in an action, by the landlord, to recover possession of the demised premises, it is not necessary to prove an actual entry, before the commencement of the suit.
    Section 25 in the title m the B. S. “Of the action of ejectment,” dispenses with the necessity of such proof, in all cases whatever.
    That section, as it relates not to the form of the action, nor to the nature of the proof to be given on the trial, is one of those general provisions which have not been repealed by the Code.
    Judgment for the plaintiff.
    This was an action by a lessor to recover the possession of the demised premises, upon the ground that the defendant Williams, the lessee, had broken a covenant in the lease, not to underlet without the consent of the plaintiff, and that for such breach, the plaintiff, by the terms of the lease, was entitled to re-enter. The complaint averred á breach of an under-letting by Williams to the other defendants.
    Williams answered separately as follows:
    The said defendant, John Williams, by A. J. Perry, his attorney, separately answering the complaint of the said plaintiff, denies, that in violation of the said covenant, in said indenture contained, and without the consent of said plaintiff, he has under-let the said premises, or some part or parts thereof, to the defendants in said action named, or either of them, and he denies, that as he is advised, he has broken any of the covenants contained in said indenture.
    The cause was tried before the Chief Justice and a jury on the 16th of December, 1852.
    The plaintiff proved an indenture of lease executed by the defendant, containing the covenant of which the breach was alleged, and a general clause of re-entry, and there rested.
    The counsel for the defendant moved for a nonsuit upon the grounds—
    First—That no evidence had been given of the under-letting averred in the coinplaint; and Second—That there was no proof of an actual entry on the premises by the plaintiff before the commencement of the suit.
    The Chief Justice denied the motion, and the counsel excepted to his decision.
    A'verdict was then rendered for the plaintiff, subject to the opinion of the court upon a case, to be heard, in the first instance, at a general term, and with liberty to either party to turn the same into.a special verdict or bill of exceptions.
    
      J. N. Platt, for the plaintiff,
    insisted that he was entitled to judgment upon the following grounds:—
    I.' The defendant, by his answer, admits that he has underlet the premises, but denies that he did it in violation of the covenant, or without the plaintiff’s consent. The breach of the covenant being thus admitted, the duty of proving the matter in avoidance devolves upon the defendant; nor could the plaintiff be called upon to prove- a negative in the first instance. Hopkins v. Everitt, 3 Code Rep. 150; McMurray v. Gifford, 5 Howard, 14.
    H. It was not necessary for the plaintiff to show an actual entry on the premises before suit brought, because,"
    I. The law does not require it, as it is abolished by express statute. (2 Revised Statutes, 4th edition, page 567, sec. 18, 19, p. 306; Sharp v. Ingraham, 4 Hill, 116.)
    2. The statute expressly forbids the plaintiff either to make a forcible entry, or, having made a peaceable entry, to have kept in possession by force.
    It would be absurd to require in the present • age, before parties can bring actions, acts which are useless and unnecessary-^-productive of no benefit to either..party, and which would occasion breaches of the peace, if attempted; and which will be followed by criminal punishment. (Tillinghast’s Adams on Ejectment, 145, 146, marginal paging. Edition of 1830. Little v. Heaton, 1 Salkeld, 259; 2 Revised Statutes, 4th edition, p. 306.
    
      L. B. Shepard, for defendant Williams,
    contended that the motion for a nonsuit ought to have been granted; because,
    First.—There was no evidence of a letting or underletting of the premises in question, or any part thereof, by the defendants, as alleged in the complaint.
    The traverse in the answer is a distinct denial of the allegation in the complaint. Code, § 149.
    Second.—The plaintiff did not show any actual entry on the premises before suit brought. 1 Hilliard, Real Prop. 2d Ed., p. 366; Chalker v. Chalker, 1 Connec. R. 79; Lincoln v. Drummond, 5 Mass. R. 321.
   By the Court. Duer, J.

In our opinion, the only reasonable interpretation of the defendant’s answer, is, that it admits the fact of underletting, and denies merely that the act was a violation of his covenant, and without the consent of the plaintiff. The denial that the underletting was a breach of his covenant, as denying a conclusion of law, and not the existence of a fact, must be rejected as immaterial. And if the answer is to be construed as averring that the plaintiff gave his consent to the underletting, this was a matter of defence, the burden of proving which rested upon the defendant. The plaintiff was not bound to prove a negative, and in proving the execution and contents of the lease, gave all the evidence that under the pleadings was requisite to maintain the action. (Mann v. Morewood, 5 Sand., p. 557; Catlin v. Gunter, ante, p. 253.)

The objection that no proof was given of an actual entry by the plaintiff previous to the commencement of the suit, is answered by that provision in the R. S. to which we were referred on the argument (2 R. S. 2d Ed. p. 233, or p. 306), and which we construe as dispensing with the necessity of such proof in all cases whatever. The commencement of a suit for the recovery of the land is now equivalent to an entry at common law, and the right of the plaintiff to enter and take possession is all that he is bound to prove upon the trial. It is this construction, as we read the opinion of Ch. J. Savage, which the Supreme Court gave to the statute in the case -of Siglar v. Van Riper (20 Wend. 414). It is true that the section in the R. S. containing the provision in question is found in the title which treats of the action of ejectment, and that this action, in its name and form, has been abolished by the Code; but the provision relates, not to the form of the action, but to the nature of the proof to be given on the trial, and is, therefore, in our judgment, one of those general provisions which the Code has expressly declared shall be retained (Code, § 455).

Judgment upon the verdict must be entered for the plaintiff. 
      
       The following is the section referred to:—g 25. “It shall not be necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any profits of the premises demanded; but it shall be sufficient for him to show a right to the possession of such premises, at the time of the commencement of the suit, as an heir, devisee, purchaser, or otherwise,” The words “ or otherwise” were plainly inserted to cover a conditional right of entry, since all other cases are covered by the previous words.
     