
    Timothy J. Sullivan, Appellant, v. John George Schmitt, Respondent.
    
      Landlord and tenant—a landlord cannot recover rent where a third person rightfully retains possession of a part of the demised premises..
    
    In an action brought by a lessor against a lessee tó recover a balance of rent-alleged to be due for the month of May, 1902, it appeared that the plaintiff leased the premises to the defendant for one year from May 1, 1902, at the yearly rental of §900 payable monthly in advance and that the defendant paid §25 on account of the rent due May first.
    When the first day of May arrived, the plaintiff instituted legal proceedings to dispossess one Tobin, a tenant who occupied the ground floor of the premises in question, but it was judicially determined therein that Tobin was still entitled to possession. -
    The defendant occupied the- balance of the premises during the month of May, the plaintiff having requested him to remain during that month and having promised to oust Tobin at the end thereof. On June first the defendant vacated the premises owing to the fact that it appeared that Tobin would remain in possession thereof indefinitely. Tobin remained in possession for many months thereafter and the plaintiff demanded and received rent from him" upon his own responsibility and not as agent for the defendant.
    Held, that the plaintiff was properly nonsuited.
    Appeal by the plaintiff, Timothy J. Sullivan, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered oñ the 24th day of October, 1902, dismissing the plaintiff’s complaint.
    
      S. Feuchtwanger, for the appellant.
    
      Jones Cochrane, for the respondent.
   Hooker, J.:

The nonsuit at the close of the plaintiff’s evidence was not error. Plaintiff’s complaint alleged a cause of action for rent for the month of May, 1902, stating that in April of that year he let and demised the premises in question to the defendant for one year from the 1st of May, 1902, at the yearly rental of $900, payable monthly in advancethat $25 was paid, and the balance of the rent payable May first is due. The proof bore out these allegations, and showed that the payment on account was made early in April, but developed the fact that when the first of May arrived and the plaintiff sought by legal process to dispossess one Tobin, who had been a tenant occupying the ground floor of the premises, it was judicially determined that Tobin’s right to possession had not come to an end, and exercising that right he remained in possession of the premises during the month of May and for many months thereafter. Not only that, but the plaintiff also demanded and received from Tobin the rent for the ground floor of the premises which he had been accustomed to pay, and this upon his own responsibility and not as agent for the defendant or representing him in any Way. The defendant occupied the basement and upper floor of the premises until the first of June when, it appearing that Tobin would remain indefinitely in possession of the ground or “ store ” floor, the defendant quit. There was some conflict in the evidence as to whether the plaintiff agreed with the defendant to put him into posséssión of the. whole premises on the first of May; but this conflict we deem unimportant, for- the reason that, taking the view most favorable to the plaintiff, the whole evidence shows a failure of consideration for the contract. It is true that it is not the duty of a landlord to eject a trespasser, wrongfully in possession, for the benefit of a lessee about to enter (Gardner v. Keteltas, 3 Hill, 330 ; Ward v. Edesheimer, 17 N. Y. Supp. 173 ; 43 N. Y. St. Repr. 138; Thomson-Houston Electric Co. v. Durant Land Improvement Co., 4 Misc. Eep. 207), but here it Mias been established by competent authority that the plaintiff was without legal right or power to give possession of the ground floor of the; premises, and the principle quoted can have no bearing. The portion of the premises in possession of Tobin was a material part thereof; in fact it is fairly to be inferred that it was the principal part thereof. This case should be disposed of upon the principles underlying the decision in Trull v. Granger (8 N. Y. 115). There it was held that where a landlord after leasing to one, leases to another before the commencement of the term, and by reason thereof the first lessee is deprived of the enjoyment of possession, an action for his damages will lie in his favor against the landlord. Because the plaintiff could not and did not demise the premises, he failed to perform the contract on his part, and was not entitled to maintain this action for rent which is based upon the contract.

By his occupation of the balance of the premises during the month of May, the. defendant could not be said to waive his claim to the right of possession of the ground floor, for he was there protesting against Tobin’s presence, and it is undisputed that the plaintiff requested him to remain during the month, promising to get rid of Tobin at its end.

The alleged tender by the defendant of the balance of the rent has not the legal effect with which the plaintiff seeks to stamp it. In many cases it is doubtless true, as he urges, that a tender is an •admission of the cause of action stated in the complaint to the amount tendered. (Eaton v. Wells, 82 N. Y. 576; Spalding v. Vandercook, 2 Wend. 431; Johnston v. Columbian Ins. Co., 7 Johns. 315.) The answer of the defendant did not, as was the fact in these cases, plead tender of any particular amount; it contained simply an averment of tender of all that was due to the plaintiff under the contract. But the evidence of all the witnesses called by the plaintiff showed that the defendant’s act, which it is sought to construe into a tender, was simply an offer, after the judicial determination of Tobin’s right to remain, to pay the balance of rent due, if the plaintiff would give possession of the entire premises; the defendant merely emphasized his offer by producing and exhibiting the cash.

The judgment should be affirmed.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  