
    Joseph Outhouse, Respondent, v. David G. Baird, Appellant.
    Second Department,
    October 18, 1907.
    Landlord and tenant — agreement to vacate on sale of premises — compliance prerequisite to actiort for value of crops planted — waiver — damages.
    A tenant who has covenanted to vacate the premises, on thirty days’ notice if sold' by the landlord is not entitled to recové!- the value of crops planted before the notice to vacate as provided in the lease, when the complaint and proof show that he failed to vacate within the time limited but was removed by summary ■ proceedings. ,
    The mere fact that after the removal of the tenant the -landlord accepted the rent due at the time of removal is not a waiver of the plaintiff’s failure t,o vacate oil-notice. .
    Moreover, in such action it is error to allow the plaintiff to recover the value of crops planted after the notice to vacate when the agreement limited the . landlord’s liability to crops planted before the notice. ■
    ■ Appeal by the defendant, David G.' Baird, from, a judgment of-the Supreme Court in favor of the plaintiff, entered in the office of • the cleric of thé county of Westchester on the 7th day of February, 1907, upon the verdict of a jury, and also from, .an order entered in said clerk’s office on -the 18th day of February, 1907,' denying the defendant’s motion for a new trial made upon the minutes.
    Action, for damages for alleged-breach- of contract contained in a lease, .. , ' '
    
      Benjamin Fagan, for the appellant.
    
      Nathan P. Bushnell, for the respondent.
   Gaynor, J.:

The complaint alleges that on February 2, 1904, the defendant leased bis farm to the plaintiff for the year beginning April 1,1904, and ending April 1, 1905, “ upon the express agreement and condition ”'that if the defendant “ should at,any. time during such term 'sell said premises,” the plaintiff “would vacate said¡iremises upon receiving thirty days’ notice so to' do, and that the defendant, herein would pay to the said plaintiff the reasonable value of any crops planted upon said premises prior to the receipt of said notice the benefit of which he could not reap ” ; that on April 9, 1905, the defendant notified the plaintiff that he had sold the farm and that plaintiff must vacate according to the agreement; that thereafter the plaintiff was removed therefrom, by an order of. the county court; that the defendant lias refused to pay the plaintiff the value of crops planted by him thereon and the benefit of which he cannot reap, of the value of $1,000, for which judgment is prayed.

The complaint does not state a cause of action. The condition precedent to a cause of action is that the plaintiff should vacate on a notice of thirty days on a' sale of the farm by the defendant. There is no allegation of compliance with this- condition, as the rules of pleading require; on the contrary, the allegation is that the plaintiff was removed by an order of the county judge.

The proof was that the defendant sold the farm and on April 21, 1904, gave the notice of thirty days to the plaintiff, but he refused to vacate in the time limited, and was removed in June; 1904, by a final order in landlord and tenant proceedings taken against him by the defendant.

After the plaintiff had been removed, from the farm he sent to the defendant the rent which had . accrued up to the time of his removal and the defendant kept it. The learned trial judge submitted to the jury the question whether this was not a waiver of the refusal of the plaintiff to vacate on the notice, instructing them that if it was the plaintiff was - entitled to recover. I own myself unable to understand what this all means. And how could receiving the rent that was due him be a waiver of anything by the defendant ? The learned trial judge also permitted the plaintiff to recover the value of crops planted after the notice to vacate was given him, whereas the agreement limits him to crops planted before it was given. The case should have been dismissed. The trial'by jury is by judge and jury, and the judge may not turn over to the jury the questions which are for him to decide.

The judgmentrand order should be reversed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  