
    WILLIAM A. COIT, Plaintiff and Respondent, v. JULIUS E. BRAUNSDORF et al., Defendants and Appellants.
    
      [Decided December 4, 1869.]
    
      A parol promise by a lessee to pay an additional rent for a fourth or additional story to be erected by the lessor upon the demised premises is wholly independent of the lease, and forms no part .of it.
    Such promise does not pass by an assignment of the lease; nor do the assignees, by acceptance of the assignment, become liable upon the promise.
    The agreement to erect the additional story, is not a demise of such story. Upon its erection it became parcel of the original demise, was covered by the original lease, and passed to the assignees. But the additional rent can be recovered only upon the new promise. It cannot be recovered upon any of the covenants in the lease.
    Before Barbour, C. J., and Monell and Freedman, JJ.
    Appeal from a judgment.
    The defendants were sued as copartners, to recover for the use and occupation of the fourth story of the buildings Bos. 87 and 89 Elizabeth street, in this city.
    The complaint alleged that the plaintiff was the owner of Bos. 85, 87, and 89 of said street. That during the year ending May 1, 1867, the defendants were in the possession, use, and occupation of the fourth story of said Bos. 87 and 89, as tenants of the plaintiff. That in April, 1867, the plaintiff gave the defendants written notice that if they occupied such fourth story after the first of May ensuing, the rent would be four hundred dollars, payable quarterly, in advance. That the defendants had used and occupied the said fourth story, from and after said first of May, 1867. That the reasonable rent and value of said fourth story, and the use and occupancy' thereof, was the sum of four hundred dollars per year, for which sum, and interest, the plaintiff demanded judgment.
    The defendants denied that they were in the possession, use, and occupation of the said fourth story as tenants of the plaintiff. 
      And they alleged that, during the time stated in the complaint, they occupied the said premises as the tenants of Julius E. Braunsdorf a/nd Henry Weil, who were then the assignees of a lease covering the same premises, made in Hovernber, 1863, hy the plaintiff, to Louis Planer and Joseph Keyser, and hy them assigned to Braunsdorf and Weil, who had paid all the rent due under the lease.
    The action was tried before Hr. Justice Jones, and a jury.
    The defendants gave in evidence a lease, under seal, dated November 14,1863, from the plaintiff to Planer and Keyser, of the three lots, Nos. 85, 87, and 89 Elizabeth street, for the term of ten years from the first day of Hay, 1864, at a yearly rent of two thousand five hundred dollars. The lease contained an agreement that the lessor should erect a three-story building upon the front parts of lots No. 87 and 89, together with an extension of one story in the rear, and the lessees should pay one thousand dollars toward the expense thereof.
    The defendants also proved an assignment of the aforesaid lease, dated January 6,1866, from Planer and Keyser, the lessees, to Henry Weil and Julius E. Braunsdorf, and of the whole unexpired term. It was further proved that Weil and Braunsdorf went into possession under the assignment, and continued in possession until, and were in possession at the time of, the trial, and had paid all rent due under the lease. Shortly after the assignment of the lease, a partnership was formed, consisting of Louis Planer (one of the original lessees), Julius E. Braunsdorf, and Henry Weil (the assignees of the lease), under the firm name of Planer, Braunsdorf & Co., to which firm Weil and Braunsdorf rented the premises from year to year, at the same rent mentioned in the lease, and which they had paid.
    The plaintiff proved, that while the building was being erected, there was a pa/rol agreement made between himself and Planer and Keyser, the lessees, that an additional or fourth story should be put upon the building, for which the said lessees should pay an additional rent of one hundred and fifty dollars per annum, during the whole term mentioned in the lease. Weil and Braunsdorf each testified that at the time of the assignment of the lease to them, they had no knowledge whatever or notice of the goar.ol agreement respecting the fov/rth story,1 although there was some evidence that they knew that the building had one more story than was specified in the lease. There was also some evidence that Braunsdorf, after the assignment had expressed a willingness to pay the additional rent, if the plaintiff would consent to a further addition to the building. The evidence left it somewhat in doubt whether the partnership of the defendants was formed at the time, or after the assignment of the lease. But it was understood that the firm was to occupy the premises.
    A notice from the plaintiff to the defendants, to the effect that if they occupied the fourth story after the first of May, 1867, the rent would be four hundred dollars a year, was proved to have been given prior to that date.
    The justice directed a verdict for the plaintiff, to which the defendants excepted.
    
      Mr. A. C. Morris for appellants.
    When the defendants showed by uncontradicted testimony that they occupied the premises, not as the tenants of the plaintiff, but as tenants of Weil and Braunsdorf, there was an entire failure of the plaintiff’s case. Ho possible amendment could have saved it, for the simple reason that the defendants, not being assignees of the lease, could not be charged with any agreement relating to it.
    If this action in its present shape had been against Weil and Braunsdorf alone, as assignees of the lease, the complaint could not have been amended so as to make the action an action to reform the lease, for the reason that such amendment changes the whole character of the action.
    
      “ When, however, the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof” (section 171 of Code, 18 How. Pr., 508; Robbins v. Richardson, 2 Bosw., 256; 39 Barbour, 104; 42 Barbour, 177).
    Braunsdorf and Weil purchased the lease without any knowledge of this contract for the additional rent claimed by the plaintiff. The effect of the lease by the plaintiff to Planer & Keyser was to make the latter the owners of the whole premises for a term of ten years, subject to the rent reserved in the lease. This term Weil and Braunsdorf bought without any knowledge of any agreement conflicting with the written lease.
    The testimony of Ooit that Braunsdorf, after the purchase of the lease, told him that he was willing to pay the additional rent, is testimony of a nudumjqaotum. But upon his cross-examination the witness stated that Braunsdorf’s promise was conditional upon the witness permitting him to add to one of the buildings, which the witness declined to do.
    
      Mr. Alfred Roe for respondent.
    The buildings only upon the premises, at the time of the execution of the lease, passed by it, together with the benefit of the covenant on the part of the lessor to erect a three-story building on Eos. 87 and 89 Elizabeth street, with the right of occupation when completed. The operation of the word building is restricted to a particular kind of building, and, in the absence of words to extend their meaning, none other passes, and only the portion of the building necessary to the complete enjoyment of the demise. The rule of usque ad ecelum, has no application to this case (Taylor’s L. & T., § 161).
    This case is stronger than if the buildings were erected at the time of the demise. It might then be said that a four-story building would pass, but it would be only on the ground of misdescription, which should never be allowed to defeat a conveyance (Taylor’s L. & T., § 164).
    The title, therefore, of the lessees under the lease extended only to the third story, and their assignees acquired no better title—claiming under the lease, they stand in the same position as the lessees. And it has been decided in this court that the original lessees were liable for use and occupation of said fourth story while occupied by them (Coit v. Planer, Braunsdorf & Co., 7 Robt., 413; S. C., 4 Abb. Pr. Rep., N. S., 140).
    The defendants were chargeable with notice of the agreement to pay rent for the additional story. The lease on its face calling for a three-story building, it was the duty of any one purchasing the lease to make inquiry whether any additional rent was to be paid for the fourth story. The use and occupation of the fourth story were admitted by defendants, and also the value thereof. They have deprived plaintiff of its use, and have had the benefit and advantage of it. Upon these facts, the relation of landlord and tenant arises, and an agreement and promise to pay a reasonable compensation should be inferred (Coit v. Planer, supra; Despard v. Wallbridge, 15 N. Y., 374).
   By the Court:

Monell, J.

In the case between these parties, reported in 7 Robt., 413; S. C., 4 Abb., N. S., 140, no evidence had been given at the trial. The plaintiff obtained judgment on the pleadings, which the court decided contained sufficient undenied allegations to entitle the plaintiff to recover for use and occupation. The complaint in that case, after stating that Planer & Iieyser were tenants, and in possession of the two buildings, alleged that it was agreed that if the plaintiff would put an additional story thereon they would pay an additional rent therefor of one hundred and fifty dollars per annum. That such additional story was put on, and thereafter Planer & Ileyser assigned to the defendants all their right, title, and interest in the premises, including such additional story, which premises and additional story the defendants have since used and occupied, after having received a notice similar to the one proved in this case. The only denial in the answer was of the alleged assignment from Planer & Keyser to the defendants.

Upon the pleadings, the justice at the trial gave judgment for the plaintiff, and the court, on appeal, held that the facts alleged were sufficient to create the relation of landlord and tenant by implication, and to lay the foundation for a recovery for use and occupation. The denial by the defendants of the assignment was regarded as neutralized and overcome by their admission of possession and occupancy of the premises, from which an assignment would be presumed.

Upon the trial now under review, the facts which are claimed to constitute a defense to the action were proved. The answer denied the occupancy as tenants of the plaintiff, and averred occupancy as tenants of Weil & Braunsdorf, who were alleged to be assignees of the lease. The lease and assignment were proved, and it was shown that the farol agreement, in respect to the additional or fourth story, was made with Planer & Keyser, the lessees, frior to the assignment to Weil & Braunsdorf, but of which agreement the assignees had no knowledge or notice at the time the assignment was delivered.

It appeared, therefore, that the defendants were not in possession as assignees of the lease, nor as tenants of the plaintiff, unless their occupancy as a copartnership firm made them such tenants, or they became so under the notice served upon them.

The evidence was, that the defendants rented the premises, including the fourth story, of the assignees of the lease. They thereby became the tenants of such assignees, and under-tenants of the premises. The legal relation of the parties is not affected or changed, by reason of the assignees being members of the co-partnership to which they rented. I cannot perceive any obj ection to the relation of landlord and tenant existing between an individual member and the firm of which he is a member. If, therefore, the defendants were tenants of Weil & Braunsdorf, the notice which was given to them by the plaintiff, and their occupancy afterward, would not create any relation of landlord and tenant between the plaintiff and themselves. They being tenants of Weil & Braunsdorf, had the right to refuse to recognize the plaintiff, and to disregard any notice he might give.

The additional or fourth story, erected upon the building specified in the lease, became a part of the demised premises, and passed under the assignment of the term to the assignees. The parol promise, to pay additional rent for such story, was wholly independent of the lease, and formed no part of it. It did not pass by the assignment; nor did the assignees, by acceptance of the assignment, become in any manner liable upon it.

An assignee of a lease is liable upon all covenants that run with the land. He is not liable upon mere personal or collateral covenants. The agreement to construct the additional story was not a demise of such story. Upon its erection, it became a part of the premises originally demised, and was covered by the original lease. The additional rent, however, could be recovered upon the new promise, but not upon any of the covenants in the lease.

These propositions are all covered by the case of Hoby v. Roebuck & Palmer (7 Taunt., 157). Roebuck leased premises for a term of twenty-one years, and afterward took Palmer into partnership, for the purposes of which, the demised premises were used, but were not sufficiently large. They agreed b jpa/rol, that if the landlord would erect an additional story over the house, they would pay, during the residue of the term, an additional rent of ten per cent, on the cost. The building was erected, and after they had paid the increased rent for some years, Palmer, before the rent accrued for which the action was brought, quitted the partnership and the premises. It was claimed that the contract for an additional rent was a demise of the new buildings, and ought, according to the statute of frauds, to have been in writing. But Gibbs, O.J., thought otherwise, that whatsoever was built, instantly became pa/reel of the premises already demised; and that this was a collateral contract, to which Palmer, no less than Roebuck, was chargeable during the residue of the term. The court m lane held that the original lease still existed; the new contract was, therefore, no demise of the premises. Only the original rent could be distrained for, and this was merely a collateral agreement to pay so much more money during the residue of the term.

It is clear that Planer & Keyser were liable on their agreement to pay the additional rent, and that such liability continued after the assignment of the lease. But it is equally clear, I think, that the additional structure, having become parcel of the premises already demised, passed by the assignment of the term, but did not carry with it any liability upon the parol agreement to pay. The assignees took the residue of the term, and had the right to use, occupy, and enjoy the whole premises (including the additional or fourth story), upon paying the rent reserved in the written lease.

As Planer & Keyser are liable only on their parol agreement, and as such liability does not attach to the assignees of the lease, or to those holding under them, the plaintiff has no remedy for the additional rent, except against Planer & Keyser, upon their promise. The defendants are not liable upon such promise, nor for use and occupation, nor upon any of the covenants in the original lease.

If the views I have expressed are correct, then it is immate^rial whether the assignees of the lease, or the defendants, had notice of the existence of the fourth story, or that it was one more story than was mentioned in the lease. It was parcel of the demised premises, and passed under the assignment; and no notice, that it was not included or mentioned in the lease, could charge the assignees upon the agreement to pay, or deprive them of the right to occupy and possess all the premises, under the covenants in the original lease.

For these reasons, I am of the opinion that the direction of the learned justice, in this case, was erroneous.

The judgment should be reversed, and a new trial ordered, with costs to the appellant, to abide the event.  