
    Ann McGregor, App’lt, v. The Board of Education of the City of New York, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 13, 1887.)
    
    1. Landlord and tenant—Lease—Construction of.
    It seems that where a lessee leased premises to he used for a specified purpose, covenanting to make all requisite alterations and to surrender the premises at the end of the term in the same condition as they were at the execution of the lease (reasonable use and wear thereof for the said purpose excepted), the lessee having made such alterations, was not hound to restore the premises to their former condition.
    
      % Same—Acceptance of possession by landlord—Effect of.
    Where there is a mere technical or implied surrendi r of leased premises to the lessor, and there is neither opportunity of knowledge or occasion for protest as to the condition they were in, and where (as here) consecutive leases operate in effect as renewals, and produce, in substantial result, one unbroken and continuous term: Held, that the question of breach in the condition of the premises relates to the final and actual surrender and is not controlled by the legal and technical surrenders occurring along, the line.
    
      3. Same — Right of action by landlord for breach of covenant nr LEASE.
    Where at the close of a term there is a surrender of possession by a tenant in such condition as lo violate a covenant in the lease, and ; n acceptance of possession by the landlord, the two things occurring eo instant, and the landlord accepting possession without knowledge of the facts or opportunity to know them, the landlord’s right of action for the breach is not lost.
    Appeal from an order made at a general term of the •court of common pleas of New York city reversing a judgment in favor of plaintiff entered upon a verdict of a jury, said order directing a new trial.
    
      John J. Macklin, for app’lt; D. J. Dean, for resp’t.
    
      
       Reversing 13 Daly 195.
    
   Finch, J.

This action was brought by a landlord against a tenant upon covenants contained in leases. The plaintiff rented the premises to the defendant to be used for the purpose of a public school. Alterations in the interior to accommodate that use were permitted by the lessor to be made by the lessee, and were alike contemplated by each when the contract was made. A printed form of lease was used to contain and express the agreement from which the clause forbidding alterations was stricken out before execution. There was also an express covenant that the lessees •should make all requisite alterations, and a further covenant on their part to surrender the premises at the expiration of the lease “in the same condition as they were at the execution of this lease, reasonable use and wear thereof as a public school, and damages by the elements excepted.”

The lessees entered and changed the dwelling house into school rooms, removing partitions and making alterations necessary for .the new use. This lease was followed by three others in similar form, each executed before the termination of its predecessor, and the last one ending the term on November 1, 1881. The complaints set out the lease and continued occupation, and alleged a breach of the covenant for restoration, averring “that the premises were left in a condition utterly unsuitable for a dwelling house,” and “uninhabitable for any purpose,” and that water taxes to the amount of about ninety-six dollars had "been left unpaid, and settled by the lessor.

The answer took issue upon these allegations, but was ■followed by an offer of judgment for $125 and costs to that date. The offer was not accepted and the action went to trial. The plaintiff gave no proof of the condition of the premises at the date of the letting, beyond the fact that they were then in the form of a dwelling house, the rooms in which had been previously let to several occupants, and the general statement of one witness that the premises at that time were “in excellent condition,” and that the pavement in front of the premises was “in good condition.” This witness, at the date of the lease, was a child about, eleven years old, living in the adjoining house, but saying; she “used to go through the premises m question, playing, with the other children there.” This evidence, although very weak in itself, was in no respect controverted and sufficiently established that the premises were in good condition when leased. The plaintiff then proved the condition of the building after it was surrendered by the defendant..

The witness said “the walls were broken, the floor was-broken, the basement was used for refuse.” She added that the sidewalk was broken by the dumping of coal upon it. The plaintiff further proved the payment by her of Croton water rents amounting, with interest, to one hundred and three dollars, and repairs of the sidewalk to the' amount of forty dollars, and then called two witnesses, a carpenter and mason, who testified to the condition of the-premises when finally surrendered. They said the first floor had sagged from the removal of partitions and was. almost worn through; that the shutters were in bad condition; that the glass in the windows was in many cases: broken; that the mantlepieces were in bad order; that the walls and ceiling had been boarded over, the nailing going-through the plastering; that the balusters of the stairs were loose and some missing, and that the cellar was full of' rubbish.

At the close of the plaintiff’s case the defendant consented that judgment might be given for the water rents and interest, but as to the remaining causes of action: moved for a dismissal of the complaint upon three grounds;, first, that no violation of the covenant had been shown, since the lease contemplated alterations in the premises and that; they were to be used as a school. This ground was not-sufficient to justify a dismissal of the complaint. Granting: that the defendant was not bound to restore the premises; to their former condition as a dwelling house, which,, under the terms of the leases we deem a correct proposition,, ' it is still true that damages to the premises were proved; which were not the effect or result of the alterations. Whether these injuries did or did not flow from a reasonable use of the premises for school purposes was a question of fact and proper to submit to the jury. They might, easily think that broken window panes, battered doors, missing balusters, filthy walls and a cellar filled with refuse-did not result from such reasonable use, and so was not excused by the terms of the lease.

The second ground of nonsuit is one which the general term sustained in their reversal of the verdict. It was that-no violation of the covenant in the last lease had been shown and there was a waiver of such violation of the covenants in the prior leases. The fourth and last lease was dated April 16, 1881, and its covenant of restoration was to the condition of that date and such condition was wholly unproved. But the complaint relates to a continuous possession under all the leases, and while the plaintiff did not show the separate damage at the close of each term and so prove four distinct causes of action, she did prove a breach of covenant referable to some one or more, or all of the leases, and it is quite immaterial which, since the covenant existed and was the same in each. The alleged acts of waiver may be considered in connection with the second or third grounds of the defendant’s motion, which were in substance that each new lease was a surrender accepted of the prior one, and she is estopped from asserting a violation of the covenants in the leases ended by such accepted surrender.

It is perhaps true that each new lease involved a surrender to the landlord of the lessee’s possession though they all ran to their termination and there was no surrender of the leases, themselves, under the prior one. Livingston v. Potts, 16 John., 28; Springstein v. Schermerhorn, 12 Id., 357. But such surrender, instead of being actual, was implied from the presumed intention of the parties and devised to give consistency to the new lease. I think it never should be made to work an injustice to the contracting parties in hostility to their real agreement. It is also true that where there has been such implied surrender the tenant loses all rights dependent upon the continued existence and validity of the surrendered lease. Loughran v. Ross, 45 N. Y., 792. But that is because the right lost or extinguished could not survive the destruction of the lease and the ending of its term and could exist only while the lease continued. Taking the new lease, and ending the old one, destroyed the right to remove buildings or the right to estover, dependent wholly upon the ended lease. , And I cannot discover that the doctrine ever went further, and sufficiently to include the present case. Certainly a surrender of the lease during the term and its acceptance by the landlord does not extinguish rights of action already accrued. We have held that, as to rent in arrears and overdue. Sperry v. Miller, 16 N. Y., 407. And where, at the close of a term, there is surrender of possession by a tenant in such condition as to violate a covenant in the lease, and an acceptance of possession by the landlord, the two things occurring eo instanti. I am not ready to admit that the right of action for a breach dies at the moment of its birth.

It is true that the landlord accepting the possession with knowledge of the facts or full opportunity to know, and without protest or claim of injury or of violated covenants may be deemed to have admitted performance of the covenant and waived any right of action for its breach, but the mere acceptance of possession in and of itself dissevered from the surrounding circumstances which characterize and qualify it, I think, should not produce that result. At least, it should not flow from a mere technical or implied surrender, where there is of course neither opportunity of knowledge or occasion for protest, and where, as here, consecutive leases operate in effect as renewals and produce in substantial result, one unbroken and continuous term. We are of opinion that the question of breach in the condition of the premises should relate to the final and actual surrender and not be controlled by the legal and technical surrenders occurring along the line.

The verdict of the jury when compared with the evidence indicates that they awarded nothing for the defend-ant’s failure to restore the premises to the condition of a dwelling-house, and the charge of the court seems to have assumed that such would be their action. But if the fact were otherwise the result would not be changed for the defendant raised no objection to the evidence and took no exception to the charge of the court, and made no request that the jury should confine their verdict to damages outside of the alterations. The plaintiff did request a charge that injuries resulting from failure to restore the premises to the condition of a dwelling-house should be awarded, which the court declined by saying that the old covenant had been read to the jury. Neither side took any exception. Since there was evidence proper to go to the jury and a question for them to decide, and no exception was taken to the manner of the submission, the verdict must stand. If they were left to determine a question of law as well as one of fact it is a sufficient answer that both sides acquiesced by making no objection.

The judgment of the general term should be reversed, and that of the trial court affirmed, with costs.

All concur, except Raparlo, J., absent.  