
    Adelia L. Otis, Executor, etc., Appl’t, v. Eustace Conway, as temporary committee, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    Landlord and tenant—Rent—Right to—Legatee—Construction op stipulation.
    These plaintiffs were the owners of premises which they leased to a party who was subsequently declared a lunatic while in possession. The committee of the lunatic attempted to surrender the possession to the landlord, who refused to accept it, claiming that the committee as such were liable for the amount of rent reserved in the lease. After this, the committee refused to have anything to do with the premises, and the landlord neither took possession of the same or accepted the surrender, but insisted upon the payment of the rent by the committee, and instituted proceedings for the collection of the same. Pending such action, stipulations were entered into between the parties by which the premises were rented, and the rent was agreed to be paid by a certified check, payable to the order of plaintiff’s attorney and the committee jointly By further stipulation, the checks were to be deposited until the determination of the controversy, the assent of the parties to this agreement in no respect altered their legal position, and on the settlement of the question at issue both parties should join in transferring them to the party held to be in possession of the premises. It was adjudged that the claim made by the plaintiff for rent, was merely one against the estate of the lunatic, which must be paid with the other claims of that nature, and was not such a one as the committee were required to satisfy A demand having been made upon the committee to endorse and transfer such checks, which was refused, this action was brought to compel compliance with such demand, and to restrain the committee from attempting to collect any rents due from the sub-tenants in this building. Held, The committee having, as it claimed, never been in the possession of the premises, the landlord was under the language of the stipulation presumed to be in possession, and entitled to the rent. Daniels, J. dissenting.
    Appeal from judgment entered on decision of the court in favor of the defendant.
    
      J. L. Cadwalader, for app’lt; Eustace Conway, committee in person, resp’t.
   Van Brunt, P. J.

The defendant in this action was appointed committee of the estate of one Oscar Strasburger, a lunatic, which estate was insolvent. The plaintiffs were the owners of the property Nos. 443 and 445 Broadway, which they had leased to the said Strasburger, from December, 1880, until January 1st, 1886, and said Strasburger was in possession of said premises at the time that he was declared a lunatic. The committee attempted to surrender the possession of the premises to the landlord, but the landlord refused to accept such surrender, claiming that the amount of rent reserved in the lease to Strasburger was a claim against the committee as such, and should be paid in full. The committee after such attempted surrender refused to have anything to do with the premises, and the landlord did not take possession of the same or accept the surrender, and claimed the rent from the committee and took legal proceedings to collect the same. Pending these legal proceedings, evidently for the purpose of lessening the damage which would be sustained, stipulations were entered-into between the parties, by which the premises were rented, and the rent was agreed to be paid by a certified check, payable to the order of the plaintiff’s attorney and the committee, jointly. It was further stipulated that the same should be deposited in the American Loan and Trust Company until the final determination of the controversy, and that the assent of either party to this agreement should not in any respect alter their legal position, and that on the determination of the questions at difference between the parties, both parties should join in transferring to the party held to be in possession of the premises. The result of the litigations was that the claim for rent by the plaintiffs was held not to be a disbursement which the committee was required to make, but that it was simply a claim against the lunatic’s estate which must be paid pro rata with the other claims against his estate. A demand having been made upon the committee to endorse and transfer the said checks, and that demand being refused, this action was brought to. compel an endorsement of said checks and a transfer of the money to the plaintiff, the landlord, and to restrain the defendant from attempting to collect any rents due from the sub-tenants in said building.

It appears clearly from the record in this case that the defendant claimed that he had never been in possession or control of the premises, and that therefore he was not hable for the rent to the landlord. If the committee was not in possession of the premises he certainly has no claim for any rents which accrued subsequent to the time of the abandonment of possession by him or by his. predecessor. The terms of the stipulation provide that this rent shall be paid over to the party held to be in possession of the premises. This language undoubtedly referred to the contest which existed between the committee and the landlord; the landlord claiming that the attempted surrender by the committee not having been accepted, he was to be held as still in possession of the premisses, and the tenant claiming that being out of possession he was not liable for the rent. If therefore the result of the contest was a holding that the committee was not in possession and not liable for the rent, the landlord, was under the language of the stipulation presumed to be held to be in possession and entitled to the rent. If this is not the construction to be placed upon this stipulation, this curious result follows that the committee not being in possession and therefore not hable for rent is allowed to collect rents of tenants in possession of the premises upon the theory that he is the landlord of such tenants. If the committee was not in possession either actual or constructive, then the persons in occupation cannot be his tenants, and the only party entitled to the possession of the premises under those circumstances being the landlord, such persons must necessarily be presumed to be the tenants of the landlord. It therefore follows that within the spirit of the stipulation referred to the landlord is entitled to collect the rent from those sub-tenants, and that the committee being relieved from the burden imposed by the lease because of not having taken possession cannot be allowed to reap the benefits which could only accrue to the assertion of a right of possession.

The judgment appealed from must therefore be reversed and a new trial ordered, with costs to appellant to abide the event.

Brady, J., concurs.

Daniels, J. (dissenting).

The contest in this suit related to the right to the rents collected of sub-tenants of the premises known as 443 and 445 Broadway. These rents accrued and have been collected during the term for which the premises were leased to Oscar Strasburger, a lunatic, for whom the defendant was appointed temporary committee. As to other rents claimed, the case has been before this court on two preceding occasions. Matter of Otis, 34 Hun, 542; Same, 38 id., 597.

In the first of these cases it was held that the landlord was entitled to be paid the rent, for the reason that the commit - tee had taken the actual possession and had the use of the property for the storage and sale of the goods of the lunatic; while in the latter it was held that the lessor was not entitled to the rents, for the reason that the temporary committee had declined to take possession of the property and had offered to surrender it to the lessors and that offer had been refused. The case was thereupon appealed from this last decision to the court of appeals, where it was affirmed, and during the pendency of the litigation action, the lessors and the temporary committee entered into agreements concerning the renting and use of the property under which the plaintiff in this action claimed to be entitled to receive the rents. Four of the agreements which were entered into are in the same form, and by each of them it was agreed and declared that—

Whereas, certain differences exist between Adelia L. Otis and others, and Eustace Conway, temporary committee of the estate of Oscar Strasburger, a lunatic, as to the payment of rent reserved in a lease made to said Oscar Strasburger & Co., of the premises Nos. 443 and 445 Broadway, and said premises being now vacant, and Messrs. Underhill & Scudder offering the sum of $300 for the right to occupy said premises for the month of July, 1885—

It is agreed between the lessors and their representatives and the estate of said Oscar Strasburger, and Eustace Conway, as temporary committee of the estate, that the said Underhill & Scudder may so occupy at the said rent for the benefit of whom it may concern, and the payment by Messrs. Underhill & Scudder for said occupation be made by certified check payable to the order of Strong & Cadwalader and Eustace Conway, temporary committee, jointly; and that the same shall be deposited in the American Loan and Trust Company until the final determination of the said controversy, and that the assent by any party to this agreement shall in no respect alter their legal positions the one towards the other; and that at the determination of .the questions at difference between the parties both parties shall join in endorsing to the party held to be in possession of the said premises.

Dated New York, June 30, 1885.
OSCAR STRASBURGER & CO., EUSTACE CONWAY.
Temporary .Committee.

These agreement it will be seem secured in the end the right to the rents to be collected from the under-tenants, to the person in the possession of the premises. And it was agreed that both the parties to the controversy should join m indorsing to the party holding possession, the checks received by way of payment for the rent.

As a matter of fact the temporary committee was not in possession for he utterly refused to take or hold such possession. The plaintiffs were not in possession, for they as absolutely refused to accept a surrender of the property, and they at no time took any proceedings to obtain the possession. The result consequently is that the lessee himself under the lease was the legal person in the possession of the property, and that is conformable to the opinion delivered in the decision of the case by the court of appeals, where it was-held that the committee took no title to the real or personal estate, and was no more than a bailiff to take charge of the property of the lunatic, and to administer it subject to the direction of the court. It was further added that “it follows as a necessary consequence from the nature of his office and the fact that the title to the lunatic’s property is not divested by the appointment of the committee, that the occupation by the latter under a lease to the lunatic, is in the character of a servant, agent, or bailiff, and creates no privity of estate between him and the lessor.”

It is quite possible that the parties may have designed by the agreements entered into, to have disposed of the rents by giving them to the plaintiffs, if they proved unsucccessful in the proceedings then pending. But they have expressed no such design in the agreements which they made, and the court has no authority to change these agreements from the form and effect given to them by these parties. They have agreed that the rents paid by the sub-tenants should go the party in the possession of the premises. The lunatic, or lessee, is that party. If not, it is the committee himself. It surely is not the plaintiffs, who have at all times refused „to accept the possession of the property.

The first agreement may not unreasonably be subjected to a different construction, for that provided that the rent received from William A. Topping should be deposited in a trust company and finally paid over to the party ultimately entitled thereto. The lunatic’s estate was insolvent, and under the authorities the plaintiffs may be held entitled equitably to the recovery of this rent. As to this particular sum they have not otherwise agreed upon its disposition than in the manner already mentioned. And equitably the plaintiffs are entitled to the amount of this rent to be disposed of under this agreement including no more than that paid by this one of the sub-tenants. 1 Story Eq. Jur., § 687; Taylor on Landlord and Tenant (7th ed.), § 659; Peck v. Ingersoll, 3 Seld., 528; Riggs v. Whitney, 15 Abb., 388.

The judgment should be reversed and a new trial ordered with costs to abide the event, unless the parties stipulate for the entry of a judgment in the plaintiff’s favor for the amount of the rent paid by William A. Topping, and mentioned in their agreement of the 25th of May, with interest thereon. If such a stipulation be entered into, then the judgment should be modified directing the recovery of that amount, without costs of this appeal.  