
    Walter Keeler v. Oliver Davis, Smith Davis, and Hannah Davis, his wife.
    A lease contained a clause to the effect, that, if the yearly rent, or any part thereof, should remain unpaid, on any day of payment, for the space of fifteen days, or if default should be made, in the performance of any of the covenants contained therein, it should be lawful for the lessor to re-enter, and to remove all persons therefrom.
    
      Held, that an action to recover possession could be maintained, without giving the fifteen days’ notice, prescribed by the statute in certain cases.
    The receipt of rent, by a landlord, after the breach of a covenant in a lease, creating a forfeiture, does not operate as a waiver of the forfeiture, unless his knowledge of the breach, when he received the rent, is clearly proved; and, upon that question, a verdict of the jury in his favor, unless plainly against evidence, is conclusive.
    Judgment for plaintiff.
    (Before Hoffman, Slosson and Woodkuff, J.J.)
    April, 1856.
    Case upon a general verdict, rendered for the plaintiff, subject to the opinion of the court, on the questions of law reserved, to be argued, in the first instance, at the General Term, and judgment, in the mean time, to be suspended.
    The plaintiff, on the 1st of May, 1851, gave a lease to the defendant, Oliver Davis, of certain lots of ground, on the west side of avenue B, in the city of New York, for the period of ten years, from the said 1st of May, 1851, at an annual rent of four hundred dollars, payable quarterly, on the first days of May, August, November, and February, of each year.
    The lease contained a clause to the effect, that, if the yearly rent reserved, or any part thereof, shall be behind or unpaid on any day of payment, whereon the same ought to be paid, as provided for, in the space of fifteen days, or if default be made, in the performance of the covenants, or any of them, on the part of the lessee, to be performed, it should be lawful for the lessor to re-enter, and remove all persons therefrom.
    The lessee did not pay the rent, which fell due, respectively, on the 1st of February, May, August, and November, 1853, and the 1st of February, 1854.
    The lease contained, also, a covenant that the lessee would not assign the same to any person, without the written consent of the lessor. It was alleged that an assignment had been made, to Hannah Davis, without such consent.
    The action is, to recover possession of the premises, and the value of the rents and profits.
    The defence was, that the rent was not due, as stated; that the assignment had been made, with the knowledge and assent of the plaintiff; and that, even if the rent were not paid, the plaintiff could not recover, because he had not given fifteen days’ notice, under the statute. The cause was tried before the Chief Justice and a jury, in January, 1856.
    It was proven, at the trial, that an assignment was made to Hannah Davis, on the 20th of December, 1852, for the balance of the term.
    On the 17th of August, 1853, a receipt was given, by the plaintiff, for the rent due on the first of that month, and on the 1st of November, 1852, for the rent then due; both given to Oliver Davis. On the 1st of February, 1853, a receipt was given, of which the following is a copy:
    “Received, New York, February 1st, 1853, of Oliver Davis, by Mrs. Hannah Davis, one hundred dollars, for the amount of rent due the first of November last, for ground-rent of lots in avenue B, between Twelfth and Thirteenth streets. W. KEELER.”
    Some evidence was given, as to conversations with Keeler, the plaintiff, at the time of giving this receipt, as to his knowledge of the assignment and assent to it, which it is needless to state.
    The court charged, that the plaintiff relied upon two grounds of - forfeiture: 1st. The non-payment of rent; 2d. That the lease had been assigned without the plaintiff’s assent, as required by it. Whether the lease was forfeited, by the non-payment of rent, was a question of law thereafter.to be considered. As to the assignment, the court observed, that the receipt of February must have been for the rent then falling due, or that of 1st November, 1852, was in full to that date; and submitted to the jury the question: “ At the time of the payment of the rent, on the 1st of February, 1853, did, or did not, the plaintiff know that the lease in question had been assigned to Hannah Davis ?” The jury answered, “ that he did not know.”
    A general verdict, for the plaintiff, was then entered, as before stated.
    
      J. E. Burrill, for plaintiff.
    
      H. G. Wheaton, for defendants.
   By the Court. Slosson, J.

It seems to me that the finding of the jury, in favor of the plaintiff; upon the question, whether, at the time of the payment of the rent on the 1st of February, 1853, he knew that the lease had been assigned to Hannah Davis, must be conclusive. If the plaintiff did not know of the assignment when he received the rent, he certainly did not, by receiving it, waive his right to insist on the condition. But the defendant contends that, though it may be true, that he did not know of the assignment at the time he received the rent, yet it does not follow but that he consented, or had previously consented, to the assignment, and he insists that the evidence of what took place at the time of the payment of the February rent, shows that such assent had been previously given, or was given at that time. As to the latter supposition, it may be said, that if the evidence could be construed into proof of an assent then given, even if evidence of a past assent were admissible, it could not affect the plaintiff, except by way of estopping him from setting up the breach of the covenant; but as the defendant had already made the assignment, and, therefore, did not act upon such assent, the doctrine of estoppel does not apply. As to the evidence showing that an assent had been previously given, it is enough to say, on the same principle, that unless it prove such assent to have been given before the assignment was, in fact, made, and that the assignment was made in consequence of it, it would not operate as an estoppel.

The evidence, even if it shows a previous assent, (which can hardly be contended,) certainly does not go to the extent of showing that the assignment was made in consequence of it. The question", therefore, of an assent, as distinct from the plaintiff’s knowledge of the fact of the assignment at the time he received the February rent, was not put to the jury, and there was certainly. no evidence to go to the jury of a previous assent acted upon.

The court looked at the question as one of waiver merely, and, therefore put to the jury the simple inquiry as to plaintiff’s knowledge of the assignment at the time he received the rent, and we think this was the correct view to take of it. The finding of the jury, on this question, is conclusive on that of waiver, and we think it supported by the evidence. This disposes of the case, and it is unnecessary to consider the question of the forfeiture on the ground of the non-payment of the rent.

Plaintiff is entitled to judgment for the possession.

Hoffman, J.

The jury find that the plaintiff had no knowledge of the assignment to Hannah Davis on the 3d of February, the date of his receipt for rent. This may be treated as negativing any knowledge of, and any assent to, an assignment prior to that time.

If it cannot be so taken, yet the testimony to the fact is very feeble, and that is only to a parol consent. The plaintiff had guarded himself against parol evidence to a consent, by the stipulation that it should be in writing.

Subsequent acts, such as receipt of rent from Hannah Davis, with knowledge, might suffice. They might be a recognition of her title, and a waiver of the written consent.

There is no receipt of rent after the 1st of February, and what is deposed to as to the plaintiff’s language then, is not only very loose, but, as tending to prove a parol consent, is, in my opinion, inadmissible.

The main question is as to the notice of fifteen days. The statutory provisions bearing upon this point, are 2 R. S. 505, § 31, and the law of 1846, ch. 274. See, also, the case of The Mayor, &c, v. Campbell, (18 Wendell, 156).

The first section of the act of 1846 is, “ Distress for rent is hereby abolished.” This annuls the clause in the thirty-first section of the act of 1830, “ And no sufficient distress can be found on the premises to satisfy the rent due.” The statute will then be entirely applicable to the present case.

The second section of the act of 1846, relates to a reservation of the right to re-enter, in default of a sufficiency of goods and chattels to distrain. Where the lease itself contains that provision, the fifteen day’s notice entitles the landlord to re-enter, although there should be a sufficiency of goods on the premises. That is, although there is such a clause, on which the re-entry is made to depend, and although there is enough to distrain upon, the right to reenter is conferred, provided fifteen days’ notice is given.

In the present case, there is no such clause in the lease.

Judgment for plaintiff.  