
    Mary A. Lodge, Appellant, v. George W. Martin, Respondent.
    
      Landlord and tenant— title divestedby condemnation proceedings — rent subsequently accruing not recoverable by the landlord.
    
    An owner of property in the city of New York whose title thereto has been divested in condemnation proceedings taken under an act of the Legislature, and who has received an award made to her therefor, by virtue of wrhich proceedings the title to the premises vested in the city of New York, cannot recover rent for the premises which has accrued subsequent to such proceedings.
    This is particularly the case in the city of New York where the statute, section 982 of the Consolidation Act (Chap. 410, Laws of 1882), relating to condemnation proceedings, provides that when land is thus taken, the obligation of the tenant to pay rent is discharged.
    Appeal by the plaintiff, Mary A. Lodge, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York °on the .28th day of March, 1898, upon the decision of the court rendered after a trial at the New York Special Term, as overrules her demurrer to a portion of the defendant's answer, and also from an order entered in said clerk’s office on the 28th day of March, 1898, directing the entry of said judgment.
    
      Theodora II. Friand, for the appellant.
    
      Douglas Mathewson, for the respondent.
   McLaughlin, J.:

This action was brought to recover rent for the use and occupation of certain real estate situate in the city of New York. The answer admits the hiring, use and occupation by the defendant of the premises, but alleges as a defense that, by virtue of an act of the Legislature, and proceedings taken thereunder, the plaintiff was, prior to the time the rent accrued, divested by an order of the Supreme Court “ of all her right, title and interest of, in and to the premises in the complaint described, and of and from all right and title to the rent thereof, and that an award for such right, title and interest so taken and divested from the plaintiff was, by said order and proceedings, made to her, and that the plaintiff had duly accepted and received said award, together with the interest thereon from said till day of May, 1897; and, further, that by virtue of said act, proceedings and order, all right, title and interest of, in and to the premises .described in the complaint, became, was, and ever since has been, vested in the mayor, aldermen and commonalty of the city of New York.” The plaintiff demurred to that portion of the answer which contained the allegation just quoted. The demurrer was overruled, and from the interlocutory judgment entered the plaintiff has appealed.

No rule of law is better settled than the one that a tenant cannot dispute the title of liis landlord. This rule is based upon the principle that a tenant, by going into possession, admits the title to be in the one from whom he has acquired that right, and, therefore, he is estopped from disputing it. But it is equally well settled that a tenant, when called upon to pay rent, can show, if such is the fact, that the title to the premises occupied by him was terminated after his tenancy commenced, either by the act of the landlord himself, or by the judgment of a court of competent jurisdiction. (Jackson v. Rowland, 6 Wend. 666 ; Despard v. Walbridge, 15 N. Y. 374; Hoag v. Hoag, 35 id. 471; Hetzel v. Barber, 69 id. 15.) The defense here demurred to alleges the termination of the plaintiff’s title by a judgment of a court of competent jurisdiction at a time subsequent to the lease and prior to the time the cause of action alleged in the complaint accrued. That such facts, if established upon the trial, would constitute a defense seems to me to be beyond question. There would be neither justice nor reason in a rule which would permit a party to collect rent for the use and occupation of lands which he does not own. When, therefore, as here, the estate of the landlord in the whole of the demised premises, as well as that of the tenant, has been extinguished by condemnation proceedings instituted on the part of the city before the rent sued for accrued, it must be held that the right of the landlord on the one hand to collect, and the liability on the other of the tenant to pay, ceased the moment that the title of the land passed to the city. The cases of O'Brien v. Ball (119 Mass. 29) and Corrigan v. City of Chicago (144 Ill. 537) are directly in point. In the former case the city of Boston, under an act authorizing it, acquired title to a tract of land which had been leased by O’Brien to Ball, and the title of the lessor in the whole tract had been divested by the city under the statute, and the lessor brought suit against the lessee for rent accruing after the divestiture of his title. The court held that he was not entitled to recover, and said : But even without eviction by or attornment to the holder of the new title the liability to pay the rent reserved ceased with the termination of plaintiffs estate.” In the latter case, the plaintiff sued to recover rent which accrued after the city had acquired title to the whole tract for a public street, and the court held that “ where the title of the landlord is extinguished in the whole estate during the term, the liability of the tenant to pay rent also ceased, and that in any action brought by the landlord for the rent accmoed after the termination of his estate, the tenant may plead such termination in defense.”

The demurrer was also properly overruled for the reason that the statute relating to condemnation proceedings in the city of New York expressly provides that, when land is thus taken, the obligation of the tenant to pay rent is discharged. Section 982 of the Consolidation Act, so called (Chap. 410, Laws of 1882), provides that “in all cases where the whole of any lot or parcel of land or other premises under lease or other contract shall be taken for any of the purposes aforesaid * * * and engagements between landlord and tenant or any other contracting parties touching the same or any part thereof, shall upon the confirmation of such report in the premises as shall be confirmed by the court aforesaid, respectively cease and determine and be absolutely discharged. * * * ”

That part of the defense demurred to comes directly within this provision of the statute, and, if the defendant can establish upon the trial what he has alleged, it cannot he seriously questioned but that it will constitute a defense to the action.

It follows that the judgment must be affirmed, with costs.

Barrett, Rtjmsey and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  