
    Robert C. Martin, App’lt, v. Maria Ann Rector, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1887.)
    
    Lease—Re-entry of demised premises—Code Civ Pro., § 1505—Notice —Ejectment.
    A lease reserved to the lessor the right to re-enter the premises demised, if no sufficient distress could be found upon the premises, or “ if. either of the covenants and conditions hereinbefore contained.” * * * " shall not be performed, fulfilled and kept, or shall be broken," one of which covenants was for the payment of rent at a time specified Held, that a notice of fifteen days, us prescribed by Code of Civil Procedure, section 1505, was essential to the right of action in ejectment for non payment of rent Landon, J , dissenting
    
      Rosendale & Hessberg, for app’lt; G. W. Miller for resp’t.
   Bockes, J.

The action was ejectment by re-entry for the non-payment of rent. On the trial before a referee, the plaintiff was non-suited, and the complaint dismissed, because of the omision to allege and prove the giving of the fifteen-day notice provided for by section 1505 of the Code of Civil Procedure, which superseded section 3 of chap. 274, Session Laws of 1846.

This ruling seems well sustained by several decisions in the court of appeals, both directly and inferentially. Van Rensselaer v. Snyder, 13 N. Y., 299; Same v. Ball, 19 id., 100, on page 108; Same v. Slingerland, 26 id., 580; Hosford v. Ballard, 39 id., 147, on page 152. The provisions in the leases here counted on, giving the right of re-entry, are, as will be seen on examination and comparison, precisely the same as in the three cases first above cited. Those cases are, as is also Hosford v. Ballard (supra), to the effect that on a lease, conditioned as are these, the right of re-entry for non-payment of rent is made to depend on the service of the fifteen-day notice before suit. We do not deem this question open here to discussion.

It should be noted that when the right to re-enter arises on default of payment of rent, and is not made to depend on a sufficiency of goods whereon to distrain, the fifteendav notice is unnecessary. Hosford v. Ballard, supra; Cruger v. McLaury, 41 N. Y., 219. Such, however, according to the decisions first above cited, is not this case. Here, as is there held, the right to re-enter was given in case no sufficient distress could be found upon the premises to satisfy the rent in arrears. The right to re-enter did not arise simply on an omission to pay the rent reserved and .agreed to be paid. It is true the provision, following that giving the right to re-enter for failure of distress, also in terms gives such right, “if either of the covenants and conditions hereinbefore contained * * shall not be performed, fulfilled and kept, or shall be broken,” one of which covenants was for the payment of rent at the time specified; and it is urged by the appellant’s counsel that under this provision the right of re-entry is preserved to the landlord, independent of the other right given him in case of a failure of distress. This contention seems to be sustained by the remarks of Jewett, Ch. J., in Van Rensselaer v. Jewett (2 N. Y., 141, on page 146). Whether these remarks were or were not concurred in by the other members of the court is not made directly to appear, although such would be the inference probably; and they would doubtless be controlling in this court in the absence of any later case in the court of appeals holding them unsound. But the later cases, particularly the first three above cited, wherein the provisions of the leases there considered were the same as here, hold, as it seems, to a different construction of the proviso, and assert the rule to be that under the provisions contained in the lease here counted on the fifteen-day notice is made essential to the right of action in ejectment for non-payment of rent. We are of the opinion that the question here presented is determined favorably to the defendant by the cases cited.

Judgment affirmed, with costs.

Learned, P. J., concurs.

Land on, J.

(dissenting).—I cannot concur. By this lease-the landlord had the right to re-enter upon default in payment of rent, without any reference to the question whether there was a sufficiency of goods whereof distress could be-made. Section 1505 of the Code of Civil Procedure, requiring fifteen days notice, applies to a lease in which the right of re-entry is given in default of sufficient distress, but does, not apply where the right to re-enter depends upon the mere non-payment of rent. Hosford v. Ballard, 39 N. Y., 147 ; Cruger v. McLaury, 41 id., 219.

Now in addition to the absolute right to re-enter for nonpayment of rent, this lease also contains the right to re-enter “if no sufficient distress can be found upon the premises.” The plaintiff does not count upon this covenant, and if he did he should not fail, if alleging two sufficient causes, he-made one good. It seems unsound to hold that the plaintiff cannot maintain the first covenant of his lease, because-he has not attempted to maintain the second, the two covenants being independent.

Van Rensselaer v. Jewett, (2 N. Y., 141), supports this', position. The lease there was precisely like this. Subsequent cases in which the point did not arise are cited as authority for the contrary doctrine. Every judge knows how difficult it is to limit his language to the precise point he needs to decide, and the little consideration nis language deserves when it covers new points which he did not have to consider. In Snyder’s case (13 N. Y., 299); Ball’s case (19 id.,. 100), and Slingerland’s case (26 id., 580), the fifteen days, notice was given. Hence there was no need to consider the-effect of not giving it, and hence they do not detract from the authority of Van Rensselaer v. Jewett (supra).  