
    EDWARD MULLER, Administrator, etc., Plaintiff and Appellant, v. WILLIAM P. EARLE, impleaded with RICHARD B. CONNOLLY, Comptroller, etc., Defendant and Respondent.
    I. Lease giving Privilege to Lessee to remove Buildings on certain Conditions.—Land and Buildings taken for Public Use, the Amount oe .Damages awarded for the Land and Buildings in a Gross Sum, without Separation, being assessed and paid to the Lessor; but the Amount which was awarded for the
    TAKING OF THE BUILDINGS WAS PROVED.
    1. Sight of lessee to recoves' from, the lessor the amount awarded for the buildings.
    
    
      a. The lease in question contained a clause that the lessee “ shall and “ will pay the regular annual charge which is or may be assessed “or imposed according to law, upon any part of the said prem- “ ises for the Croton water, and shall and will, at his own proper “ costs and charges herein, pay and discharge all such taxes, duties, “and assessments whatsoever, as shall or may, during said “ term hereby granted be charged, assessed, or imposed upon said “described premises,” and a further clause that the lessee “may “remove all buildings and movable improvements that he may “ have erected upon said premises, provided nevertheless that the “ right of said party of the second part (the lessee) to remove build- “ ings and movable improvements as aforesaid, is only on the con- “ dition that the said party of the second part shall have kept and “performed all the covenants, agreements, and conditions of this “ lease, and also that all such removals as the said party of the sec- “ ond part shall have the right to make pursuant to this lease shall ‘1 be made during the month next preceding the termination thereof.” At the time of the taking of the land and buildings certain taxes and assessments remained unpaid.
    HELD—
    1. The right of removal was as to time restricted only by the termination of the lease and term by effluxion of time, without its being exercised ; and as to performance of covenants, only to
    ■ their performance at some time before the right to remove had expired by effluxion of time.
    2. The taking of the lands terminated the estates of the lessor and lessee at the same time, and the title to the land and buildings became vested in the corporation of the city of New York, and the awards for damages became the property of the parties respectively entitled to the lands and buildings.
    3. The award for the buildings was substituted in their place, and the lessee was possessed of the same rights in respect to it that he had theretofore possessed in respect to the buildings.
    4. As the lease had not terminated by effluxion of time at the time the' land and buildings were taken, and as by the act of taking the estates of both lessor and lessee were terminated, and the award for the buildings substituted in their stead, out of which award the corporation could deduct taxes and assessments due, the award for the buildings belonged to and was the property of the lessee.
    5. Even if the non-payment of taxes and assessments was in the nature of a forfeiture, still the court could relieve from it; and it would be the duty of the court to adjust the equities between the parties.
    HELD FINALLY—■
    
      That the lessee might recover from, the lessor the amount awarded fm' the buildings, less unpaid toases and assessments in am, action for money had amd received.
    
    Before Monell, Freedman, and Curtis, JJ.
    
      Decided April 5th, 1873.
    Appeal from judgment.
    The plaintiff’s intestate, it was alleged, was the owner of certain buildings erected upon premises which had been leased to him by defendant’s grantor.
    The lease bore date April 14, 1859, was made by Whitney, the defendant’s grantor, to one Alois Muller, by whom it was assigned to the plaintiff’s- intestate ; was for a term of ten years, and contained the following covenant :
    “And the said party of the second part, for himself, his heirs, executors and administrators, doth covenant and agree to and with the said party of the first part, his heirs and assigns, by these presents, that the said party of the second part, his executors, administrators or assigns, shall and will yearly and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly rent above reserved, on the days and in the manner limited and prescribed as aforesaid, for the payment thereof, without any deduction, fraud or delay, according to the true intent and meaning of these presents. And also shall and will pay the regular annual charge which is or may be assessed or imposed according to law upon any part of the said premises for the Croton water, and that the said party of the second part, his executors, administrators or assigns, shall and will at their own proper costs and charges, bear, pay and discharge all such taxes, duties and assessments, whatsoever, as shall or may during the said term hereby granted, be charged, assessed or imposed upon the said described premises.”
    Also the following provision:
    “And it is further understood and agreed by and between the parties to these presents, that, at the expiration of the term hereby granted, the said party of the second part may remove all buildings and movable improvements that he may have erected upon said premises, but that he shall not remove any trees, plants or shrubbery, the foundations to any buildings, nor any fences or permanent improvements that he may have made or erected in or upon said premises, except the buildings themselves, but the same shall remain and be deemed and considered parcel of the realty.”
    “Provided, nevertheless, and it is hereby understood, that the right of the said party of the second part to remove buildings and movable improvements, as aforesaid, is only upon the condition that the said party of the second part shall have kept and performed all the covenants, agreements and conditions of this lease. “And also, that all such “removals, as said party of the second part shall have the right to make pursuant to this lease, shall be made during the month next preceding the termination thereof.”
    
      The premises covered by the lease were taken by the corporation of New York for public purposes, and the damages assessed to Earle, the owner, included the sum of nine thousand five hundred dollars for the value of the buildings, which sum in addition to the award for the land was paid to Earle.
    The action was tried by the court with a jury, and the following facts found:
    
      First. That said action was discontinued as to the defendant, the mayor, aldermen, and commonalty of the city of New York, and continued against the other defendants. That the defendant, Richard B. Connolly, comptroller of the city of New York, did not appear in the action, or answer the complaint therein. That the defendant, William P. Earle, appeared in and defended said action separately, and that the action was tried on the issues raised by the separate answer of the defendant Earle.
    
      Second. That at and prior to the time of making the award to William P. Earle, and the taking of the land mentioned in tire complaint herein, with the improvements thereon, the defendant, William P. Earle, was the owner in fee of the lands taken upon which the buildings claimed by the plaintiff had been erected, and that the plaintiff at the time of taking said land held and occupied said lots, Nos. 36 and 37, with others, on the commissioners’ map, mentioned in said complaint, as lessee, under said defendant Earle, as his landlord, by virtue of the lease mentioned in the complaint, and that said lease was terminated on the confirmation of the commissioners’ report mentioned in said complaint.
    
      Third. That the said plaintiff was bound by his covenants in said lease, among other things to pay and discharge such water rents, taxes, and assessments, as should be imposed or assessed upon the demised premises during the term granted, and at the termination of said lease, upon condition that he performed the covenants in said lease, he was to have the right to remove .all buildings and movable improvements by him erected on said premises ; all such removals to be made during the month next preceding the termination of said lease. That at the time of the making of said award, and taking the said lands, with the buildings and improvements thereon erected, water rents, and taxes, and assessments to a considerable amount had been imposed and -assessed thereon, and were still in arrears and unpaid, the plaintiff, as such lessee, having omitted and neglected to pay and discharge the same, and that the said buildings were removed from said lands by authority of the mayor, aldermen, and commonalty of the city of New York, and applied to their use.
    
      Fourth. That the award made to the defendant, Earle, by the commissioners, and confirmed by the court, for improvements, comprehended and' included the buildings which had been erected by the plaintiff, and were then standing on lots 36 and 37.
    With the following conclusions of law:
    
      Second: That the said plaintiff has no cause of action .against the defendant, William P. Earle, for or by reason of any matter or thing stated or alleged in his complaint, or proved on the trial.
    
      Third. That the said defendant, William P. Earle, is entitled to a judgment in his favor against the plaintiff, .Louis Muller, with costs, and I do hereby order judgment accordingly.
    The only proof of unpaid taxes or assessments was the production of certain bills and their payment by Mr. Earle previous to receiving the award tor damages. This evidence was objected to, and the objection overruled. The plaintiff excepted.
    Judgment was entered in favor of the defendant for costs, from which the plaintiff appealed.
    
      Solomon B. Noble, attorney, Solomon B. Noble and A. R. Lawrence, of counsel for appellant,
    urged:
    
      
      First Point. One of the main grounds on which the court "below dismissed the complaint, as to the defendant Connolly, and ordered a judgment in favor of the defendant Earle, was, that as there were certain unpaid taxes and assessments upon lots 36 and 37 at .the time the commissioners made their report, the plaintiff (appellant) was, "by the terms of the lease under which he held, precluded from setting up any title to, or interest in, the buildings.'
    It is respectfully submitted that the judgment cannot be sustained on such ground, (a). It must be borne in mind that the termination of the lease which Louis Muller held was not a termination by efflux of time, nor by the expiration of the term.
    It was a forcible termination, so to speak, caused by the exercise of the power of eminent domain, on the part of the mayor, aldermen, and commonalty of the city of Hew York, which evidently was not such a termination of the lease as was within the contemplation of the parties thereto at the time of its execution. (5). 1STow, no one can deny that if Louis Muller had waited until the first day of March, 1869, and had then paid all the taxes and assessments on lots thirty-six and thirty-seven, he would, if there had been no proceedings taken for the acquisition of those lots by the city, have been entitled to remove the buildings in question during the month of April, 1869.
    There is nothing in the lease itself which prohibited Louis Muller from waiting until the last moment, and then paying the taxes and assessments, and thereby preserving his right to the buildings, (c). The commissioners therefore, we submit, were not right in assuming that Muller would make default in the payment of the taxes and assessments, or that he had in any way forfeited, at the time their report was made up, his right to remove the buildings, nor to an award for their value, (cl). Clearly the commissioners had no right to assume that there had been a forfeiture of Louis Muller’s right to remove the buildings, and that the title to said buildings, and to an award for their value, had become vested in the defendant Earle.
    
      Second Point. There had been no forfeiture of Louis Muller’s right to remove the buildings on lots thirty-six and thirty-seven at the time the report of the commissioners was made, nor at the time it was confirmed. (a). The lease from Whitney to Alois Muller contained the usual clause, that if the lessee failed to keep or made default in any of the covenants therein contained on his part, the lessor might then re-enter.
    
    The breach of this condition did not work an absolute forfeiture of the lease.
    It could be considered a forfeiture only at the election-of the lessor, and the case clearly shows that Earle never elected to consider the lease as forfeited (Clark v. Jones, 1 Denio, 516; Stuyvesant Davis, 9 Paige,, 427; Arnsby v. Woodward, 6 Barn. & Cress, p. 519).
    Earle, as landlord, had done nothing indicating his intention to insist that there had been a forfeiture of the lease by the lessee, nor had he re-entered or taken any steps showing that he elected to consider the lease as void (Ib. 519).
    The taxes and assessments upon the lots had been standing for several years, and it was too late for Earle to elect to consider the lease as forfeited, even if he wished to do so.
    
      Third Point. Again, even if a tenant has forfeited his lease, by a neglect to pay a certain sum of money, a court of equity will in general relieve him from the forfeiture, where the interest can be calculated with certainty (Baxter v. Lansing, 7 Paige, 350; Jackson v. Brownson, 7 John. 235; Taylor on Landlord and Tenant, sec. 495).
    And in this case it would be competent for the court, acting on this principle, to make such a decree as would. do justice between the parties, to wit, by adjudging that the plaintiff pay off the taxes and assessments, with the accrued interest, and that the balance of the value of his buildings be paid to him.
    
      And such is the prayer for judgment.
    
    
      Fourth Point. But if there ever was a forfeiture on the part of Louis Muller, that forfeiture had been waived by the defendant Earle by the receipt of rent from Muller, subsequent to the alleged breach of the covenant. (a). The evidence shows that the defendant Earle continued to receive rent from Louis Muller up to the 18th day of March, 1868, or eighteen days after the confirmation of the report of the commissioners, and, of course, after the alleged forfeiture.
    Such a receipt operated as a waiver of the forfeiture, if any forfeiture had occurred (Jackson v. Sheldon, 5 Cowan, 448; Hunter v. Osterhoudt, 11 Barb. 33; Bleecker v. Smith, 13 Wend. 530).
    
      Fifth. The suggestion contained in the opinion of the Chief Justice, that there had been an award to the plaintiff for $200 by the commissioners, is no answer to the claim of the plaintiff, (a). In his opinion the Chief Justice admits that the award “ was very small, and “that it is quite possible that nothing was included “ therein, for the value of the buildings or materials, “ when removed.”
    It is, with great deference, contended by the appellant that, by the record in this case, it must be considered as having been determined that no allowance was made in the award to Muller for the value of the buildings.
    
    The Chief Justice has found, as matter of fact, that the award to Earle comprehended and included the buildings which have been erected by the plaintiff.
    
    Such being the case, the inequity of allowing Earle to receive the value of the buildings, it seems to us, must strike any candid mind. (b). The injustice perpetrated upon Muller by the commissioners can best be seen by the award made hy them to Masterson. Masterson was the assignee of that part of the Whitney lease which related to lot No. 33.
    Masterson, for his Building, on one lot, was allowed By the commissioners $5,600, and for his lease $2,000.
    The plaintiff’s Buildings were worth much more than Masterson’s, as would have Been shown if the report of the appraisers had not Been excluded By the court.
    There was no reason why Louis Muller should not have Been allowed, upon doing equity, to wit: upon paying up the taxes and assessments, to receive equity By an award for his leasehold interest and the value of his buildings.
    
    Muller’s lease had fourteen months to run, the same as Masterson’s; and it is mockery to say that the value of such an interest and of the Buildings amounted to no more than $200.
    Besides, the case shows that the greater part of unpaid assessments and taxes were imposed on lot 33 (Masterson’s).
    
      Sixth. The plaintiff was not precluded, Because he appeared Before the commissioners and claimed an. award to the Buildings, from maintaining this action. (a). The decision of the commissioners, as to the question who is the owner of the property taken for a proposed improvement, is not Binding upon the rival claimants, if there are such, and an error in making a decision on the part of the commissioners will always Be corrected By the courts By decreeing the award made By the commissioners to the actual owner (Matter of Central Park Extension, 16 Abbott, 64).
    In that case Judge Ingraham says :
    “If the commissioners should err in awarding to the “wrong persons the damages, no injury can accrue. lt The true owner can recover the money if paid, or “may, By injunction, stay the payment and have his “claim investigated,” etc. (Ib. p. 64).
    
      It is quite immaterial, therefore, what the commissioners decided as to the respective claims of Earle and Muller, under the lease, to the buildings.
    Those claims could only finally be settled by a court (Laws, 1813, sec. 178, p. 408; William and Anthony Streets, 19 Wend. 678; John and Cherry Streets, 19 Wend. 657; Palliet v. Youngs, 4 Sandf. 50).
    
      Martin & King, attorneys, and J. M. Martin, of counsel for respondent,
    urged:—I. The buildings erected on the land became the property of the owner of the fee, subject to the tenant’s license to remove such as he had erected, on payment of all taxes and assessments, and removing them one month before the termination of the lease on the 28th day of February, 1868 (Elmers v. Mann, 3 East, 38; Austin v. Stevens, 24 Me. 520, 528; Mathinet v. Geddings, 10 Ohio, 364).
    II. By failing to pay such taxes and remove the buildings as required by the lease, the tenant lost all claim thereto, and any award for the value of them properly belonged to Earle (Worthington v. Young, 8 Ham., Ohio, 401, and cases cited under last point).
    III. The only testimony material to the plaintiff’s case was such as tended to sho w that he, or his assignor, erected the buildings, paid the taxes, and removed the buildings pursuant to the precedent condition of the lease.
    All other testimony was wholly irrelevant and immaterial.
   By the Court.—Monell, J.

The construction which I have given to the provision in the lease, in respect to the right of the lessee to remove the buildings, renders it unnecessary to examine the exception relating to the alleged insufficiency of the evidence of the non-payment of taxes or assessments.

The covenant to pay taxes and assessments, although a covenant running with the land so as' to "bind the estate in the hands of an assignee (Demarest v. Willard, 8 Cow. 206), is a personal covenant for the breach of which an action will lie without any payment by the lessor (Rector, &c., Trinity Church v. Higgins, 48 N. Y. R. 532). At any time during the term, and whenever and as often as default was made by the lessee, payment could have been enforced by action by the lessor. It was not necessary to wait until the expiration of the term or to look solely to the proviso in the lease ; but the right of action was complete, on any default of payment by the lessee.

The right reserved to the lessee ,to remove the buildings upon the demised premises at the expiration of the term, is limited by the condition that the lessee shall have kept and performed all the covenants and agreements of the lease ; and the construction of this condition by the court at Special Term was, that the default of the tenant happening before and continuing to the time the lands were condemned, operated as a forfeiture of his right to remove the buildings, and therefore of his right to any award for damages.

The right to remove the buildings extended by the terms of the lease to the end of the term, and could be exercised at any time during the term, or on the day it terminated; and such right was qualified only by the ■condition that the lessee had paid all taxes or assessments laid upon the premises.

If, at the time this right of removal terminated by its limitation, taxes or assessments were unpaid, the condition would operate; the buildings and improvements would become the property of the lessor, and the lessee’ s right of removal would cease.

But this effect of the condition is, I think, confined to a termination of the lease and term by the effluxion of time, and to a state of things within the supposed contemplation of the parties, and not to a determination of the estate and of the relations of the parties hy operation of law.

No right of re-entry for breach of covenant or condition is given by the lease, and the right to remove the-buildings was, therefore, restricted as a security for, or indemnity against, taxes and assessments. For it Avasdoubtless the intention of the lessor to secure their payment by providing a quasi forfeiture if there should be default. But it is very clear that although the covenant to pay could be enforced at any time, the condition could not operate except on the expiration of the term.

In this case, the estates of the lessor and of the lessee-terminated at the same time and in the same manner. The act which authorizes the condemnation of lands for public purposes provides (Laws, 1813, § 178) that, upon confirmation of the commissioners’ report, the city shall be seized in fee of the lands; and further (§ 181), that thereupon all leases, or other contracts respecting-the lands so taken, shall cease and determine.

It is found as a fact that the'commissioners of estimates appraised the value of the buildings upon the-demised premises at nine thousand five hundred dollars, and that their report was confirmed by the court on the-28th of February, 1888. Upon such confirmation, the title to the land and to the buildings and improvements-thereon became vested in the corporation of the city of New York, and the awards for damages became the property of the parties entitled to them.

Until, therefore, this legal transfer to the corporation, the condition in. the lease was unaffected, and inoperative to deprive the lessee of his buildings." By this, transfer, the award was substituted in the place of the buildings, and the lessee was possessed of the same right in respect to it that he had theretofore possessed in respect to the buildings. He could not have his buildings, and it is doubtful if, during the pending proceedings to condemn the land, he could lawfully have-removed them. He. was not bound to remove them. That right, at least as between him and Ms landlord, had not and could not be terminated until the expiration of the term of the demise, and until it was so terminated the landlord had no claim whatever upon the buildings.

But, upon the confirmation of the commissioners’ report, the rights of the lessee were transferred to the award, and as between him and the lessor, were probably subject to the condition contained in the lease, so-far at least as to require the payment by the lessee of all taxes and assessments for which he was liable under his covenant.

The breach of the condition did not at any time work a forfeiture of the estate of the lessee. There was no-right of entry or words of forfeiture, and it could operate only after the estate had ended.

But if it was in the nature of a forfeiture, it c.ould be relieved ; and it would, I think, be the duty of the court to adjust the equities between the parties in furtherance of justice (Baxter v. Lansing, 7 Paige, 350).

In The Rector, &c., of Trinity Church v. Higgins (supra), the action was upon the covenant to pay assessments, and a recovery was had for the amount of the unpaid assessments, although no part had been paid by the covenantee. The court, in speaking of a recovery under such circumstances, recognizes the equitable power of the court to grant to the covenantor adequate and proper relief.

As it was found as a fact that the buildings belonged to the plaintiff, it follows, I think, that the damages for their being taken should have been awarded to him. That it has been also found that their value was included in the award to the defendant Earle, and after-wards paid to Mm, does not divest, and cannot deprive, the plaintiff of his right to claim them ; and his action is therefore properly brought to recover money received by the defendant to the plaintiff’s use.

But as the defendant, "before receiving the award, was required to, and did pay certain taxes and assessments, which were claimed to be liens on the demised premises, and which, if liens, the plaintiff had covenanted to pay, the defendant should be allowed to deduct the amount with interest, upon establishing that they were liens upon the premises.

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