
    Gerard Beekman et al., Trustees, Pl’ffs, v. Abraham Van Dolsen. Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Landlord and tenant—Liability for bent.
    The fact that a non-resident leased certain property so as to proceed in the federal court to restrain threatened injuries to the property by municipal authorities, will not relieve the lessee from his covenant to pay rent where it appears that he intended to make himself liable.
    2. Same—Lessee’s liability for destruction of property.
    Certain dock property was leased to defendant, who covenanted to surrender the same at the expiration of his term in good condition, but it was partially destroyed by the municipal authorities, although defendant promptly invoked the aid of the courts to prevent such injury. Held, that defendant was not liable for the partial destruction.
    Exceptions directed to be heard, in the first instance, at general term, a verdict having been directed for plaintiff for. $11,186.82, in an action to recover various sums of money on four separate causes of action set forth in the complaint
    
      Wm. Mitchell, for pl’ff; Carlisle Norwood, for def’t.
   Patterson, J.

This cause is before us on exceptions ordered to be heard in the first instance at the general term. There are four causes of action set forth in the complaint. At the trial the third was virtually withdrawn from consideration, but as to the others a verdict was directed in favor of the plaintiff and the amount of the verdict was arrived at after deducting a counterclaim admitted to be properly chargeable against the plaintiffs.

The first cause of action was for rent accrued under a lease. As we look at the record, it is clear the defendant was liable for that rent His covenant is plain. While it is true that two other instruments were executed contemporaneously (the difference of a day in their respective dates is not material, as it is perfectly clear they formed part of one transaction) with the lease, and we may consider them together, it is apparent that the defendant not only covenanted in form, but that he intended to be liable for the rent of the dock property, and that he understood and knew that he was to be a principal and not an agent. Whatever caused his introduction to the matter, whether it was to find in him a plaintiff who could bring a suit in the United States circuit court or any other reason, when he did make his covenant he became bound by it and was directly liable to the lessors for the performance .of all the terms and requirements of the lease incumbent upon the lessee, except so far as they may have been modified by the provisions of the other instruments ; but nothing contained in those other instruments relieved him from the payment of rent

The principal question involved in the discussion before us arises out of the second cause of action set forth in the complaint The facts, so far as they are material relating to it, may be briefly stated. The premises in question, consisting of certain dock property on the East river front of the city of New York, between Forty-ninth and Fifty-first streets, were leased on the first day of December, 1880, by the plaintiffs, as trustees of the estate of James W. Beekman, deceased, to the defendant for a term of years, and that term was to and did begin about twenty days before the date of the lease. One of its provisions was that the defendant, “at the expiration of the said term, will quit and surrender the premises hereby demised in as good state and condition as reasonable use and wear thereof will permit, damage by the elements excepted, without demanding compensation for any improvements on said premises made by said party of the second part.’’ From the beginning of the term the premises were in the actual possession of third persons, who should, for all the purposes of this case, be considered as under-tenants of the defendant, and that is the most favorable aspect in which they can be regarded relatively to the plaintiffs. While the defendant was thus in possession "of the locus in quo by his sub-tenants’ occupancy, very serious damage was inflicted upon the property by the dock de: partment of the city of New York. It consisted of the partial destruction of a retaining wall, bulkhead and dock. This act of aggression by the dock department followed very closely upon the execution of the lease, and the testimony before us leaves no doubt whatever that the intention of the commissioners of the dock department to commit what is called the waste to these premises was well known to the plaintiffs before the lease to the defendant was made, and it is proven beyond the possibility of controversy that immediately the lease was executed and delivered the defendant .brought a suit in equity in the United States circuit court to restrain the action of the dock department, and that Mr. Justice Blatchford issued a temporary injunction restraining the commissioners from acting.

The theory upon which this second cause of action proceeds is, that the demised premises being in the possession of the defendant and he having covenanted to surrender them at the expiration of the term in as good condition as when he took possession, reasonable use and wear and tear and damages by the elements excepted, he is liable for the destruction of or detriment to the premises before alluded to, whether committed by himself or by others. In other words it is sought to hold him liable for permissive or negligent waste, and it is claimed by the plaintiffs’ counsel that adjudications of courts of authority in this state sustain the contention now made. We must consider the whole case on the terms of the lease between the plaintiffs and the defendant. There is no covenant in that lease that the defendant shall' make repairs and the law will not imply one. It is not at all clear that a tenant for years is liable for permissive waste under any view of the law, although it seems to have been assumed by the courts of this state that such is the case, Robinson v. Wheeler, 25 N. Y., 252; Austin v. Hudson R. R. R. Co., id., 334, but it has long been a contested question in the English courts, as is shown by the cases cited by Mr. Yool in his essay on Waste (p. 10).

But we will assume that an action on the case against a tenant for years for permissive waste may be brought in this state with all the results that would ñow therefrom, and yet we would not be justified in deciding that such an action may be maintained upon the facts of this present action. Waste, in its simplest definition, is whatever does a lasting damage to the freehold or inheritance. It is either voluntary or permissive, and the distinction is so clear that authorities need not be cited. Permissive waste implies negligence, which may consist either of acquiescence or assent in the acts of strangers or failure to prevent such acts or to do that which is incumbent upon the party in possession as matter of good husbandry. But the very essence of liability for permissive waste must be negligence. In 1 Cruise’s Digest (title 3, chap. 2, p. 129), it is said that permissive waste is a matter of omission only and (at page 146) where the party in possession suffers a stranger to commit the injurious act he shall be charged with it, for it is presumed in law he may withstand it and the law gives to every man his proper action, the lessor against the lessee and the latter his action against the trespasser who committed the waste. This was not so at common law, but was derived from the provisions of the Statutes of Marlbridge, 52 Hen. Ill, ch. 24, and Gloucester, 6 Edw. I, ch. 5.

Bat to constitute this particular kind of waste there must have been neglect, omission, sufferance or permission of the tenant. The presumption referred to is not conclusive. It may be rebutted by proof. The most ordinary kind of permissive waste is suffering buildings to fall into decay from neglect If the defendant in an action brought under such circumstances should prove that he exercised all diligence and fully discharged his duty to his landlord he would be relieved from liability. It has recently been held in this state that what constitutes waste is a question of fact for the jury, Ey saman v. Small, 40 St Rep., 30, and it seems to be assumed there that all that was required from the party in possession was to be diligent to prevent dilapidation of the premises. That appears to us to be the true measure of duty in cases of this kind. Nothing of affirmative wrong is alleged against the defendant. He committed no act of waste, nor did he suffer any to be done by want of diligence. On the contrary he interposed to prevent it, and did all that the most careful and prudent man could have done under the circumstances to prevent damage being done to the property. A reference to a few dates and facts will demonstrate this. The lease in question was executed on the 1st day of December, 1880. The term was for two years from the eleventh day of the preceding November. Long prior' to that -date proceedings had been taken by the department of docks of the city of New York, under a claim of legislative authority to do so, to change the water front of the East river, including the premises in question. They were pending when this lease was made, and resulted in a contract on the 4th December, 1880, between the commissioners and one Kinsley, whereby the change referred to was to be operated. The commissioners undertook to execute the change alluded to and then the situation was that the •tenant in possession was bound to be diligent in resisting the contemplated encroachment on the demised premises That is exactly what he did. On the 18th day of December, 1880, he applied to Judge Blatchford of the United States circuit court and obtained an ad interim injunction against the city of New York and the members of the board of dock commissioners. What more could he have done ? He invoked the aid of the court to prevent the wrong, and that was all that could be required of him.

Mr. Gibbons in his treatise on Dilapidations says, on the authority of Coke, “it may be inferred that the tenant is liable only for such acts of waste by a stranger as do not exceed a civil trespass, and which he might have reasonably resisted.” If he has-done all he could do to resist the acts of a department of a municipal government, acting under actual or colorable authority of law, he has striven to protect the property, and has neither permitted the trespass nor negligently suffered it, and as the recourse against him would only be in an action of trespass on the case, and the gravamen of that action being either permission or negligence as applied to this- case, the plaintiff could not recover. The defendant was not in fault. There is not a case to be found in this state when the defendant was held liable for permissive or negligent waste when he resorted to all proper and lawful means to prevent a stranger or intruder from doing damage to the reversion, and we certainly will not extend the rule of liability in a case of this kind.

The learned judge in the court below directed the jury to find a general verdict for the plaintiff for $11,186.82, which was the result of a diminution of $12,586.82 less $1,400 on a counterclaim. As this balance was made up, we think the direction was-erroneous, and that the exceptions should be sustained and a new trial ordered, with costs to abide the event

Van Brunt, P. J., concurs in this opinion so far as it relates to liability for wraste, and in result arrived at.

O’Brien, J., concurs.  