
    Robert G. Martin, App’lt, v. Maria Ann Rector, Respt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed February 25, 1890.)
    
    Landlord and tenant—Van Rensselaer Lease—Right of re-entry under—Notice of intention to do so unnecessary—Code Civ. Pro., §§ 1504, 1505.
    Code Civil Procedure, § 1504, which authorizes a recovery of the property granted or demised without any demand of rent or re-entry on the property, where rent is six months in arrear, applies to a Van Rensselaer lease containing a covenant to pay a yearly rent, etc., and a right of reentry if “no sufficient distress can he found,” and also a right of re-entry if the covenants of the lease be broken, and in such a case the fifteen days notice of intention to re-enter required by Code Civil Procedure, § 1505, need not be served.
    (Following Van Rensselaer v. Jewett, 2 H. Y.. 141.)
    Appeal from a judgment of the general term of the supreme court, in the third judicial department, affirming a judgment for the defendant entered upon the report of a referee.
    This is an action of ejectment by way of re-entry for non-payment of rent.
    By a sealed indenture, dated June 14,1808, Stephen Van Rensselaer granted, sold and released to George Adriance and Rachael Whitbeck, their heirs and assigns, the premises first described in the complaint, with certain exceptions and reservations, to have and to hold the same “unto the said parties of the second part ■* * * their heirs and assigns forever; yielding and paying therefor yearly * * * during the continuance of this grant * * * the yearly rent of twelve bushels of good, clean, merchantable winter wheat and four fat hens * * * and to perform one day’s service with carriage and horses, the first payment to be made the first day of January next, and the payments thereafter in and upon the said first day of January in each year.” There was a covenant on the part of the grantees, their heirs and assigns, to “pay or cause to be paid unto the said Stephen Van Rensselaer, his heirs or assigns, the yearly rent reserved at the days and times and manner aforesaid,” as well as to pay all taxes that should at any time be assessed upon the premises. The instrument also contained certain conditions as to the sale of the-premises by the grantees, including the payment of a bonus to said, grantor equal to the amount of one year’s rent, and a provision that the title should revert to him if said conditions were not, complied with. There were numerous provisos for the benefit of' the grantor, and among them that if the rent reserved should be unpaid for twenty-eight days after the day of payment specified, it should be lawful for him, his heirs, or assigns, at his or their option, “ either to prosecute for the recovery of all rents then due in some court of record or * * * to enter and there to distrain,, and the distress so taken to lead, drive and carry away,” and by a sale of the same to collect the rent and costs.
    Immediately after this provision is the following, which is the final clause: “And provided further, and these presents and everything herein contained are upon this express condition, that if it should at any time happen that no sufficient distress can be found upon the premises to satisfy such rent due and in arrear as aforesaid, or if either of the covenants and conditions hereinbefore contained on the part of the said parties of the second part, their heirs and assigns, to be performed, fulfilled and kept, shall not be performed, fulfilled and kept, or shall be broken, that then and in each and every such case, from thenceforth and at all times thereafter, it shall and may be lawful for the said Stephen Yan Rensselaer, his heirs and assigns, or any of them, into the whole of the said hereby granted premises * * ■ * to re-enter and same as. his and their former estate to have again and enjoy, and the said parties of the second part, their heirs and assigns, and all others, thereout and from thence utterly to expel, put out and amove, and that upon such entry made * * * these presents * * * shall cease, determine, and become void and of no effect.”
    The complaint set forth the substance of said indenture, alleged that the plaintiff had duly succeeded to all the rights of said grantor, that no part of the rent accruing January 1, 1884, had been paid, that it was more than six months in arrear and demanded judgment for recovery of possession. There was a second count for other premises, covered by another instrument of like-character.
    Upon the trial, after these instruments had been read in evidence and certain testimony had been given tending to sustain the causes of action set forth in the complaint, it was admitted that no notice had been served pursuant to § 1505 of the Code of Civil Procedure, whereupon the complaint was dismissed, upon, defendant’s motion, on account of the failure to serve such notice..
    
      G. L. Stedman, for app’lt; George W. Miller, for resp’t.
    
      
       Reversing 6 N. Y. State Rep., 400.
    
   Yakn, J.

The determination of this appeal depends upon the-construction to be given to the instrument, of which an analysis, appears in the foregoing statement, in connection with certain, sections of the Code appertaining to the subject. It is well settled that the parties to such a grant are presumed to have contracted with reference to the power of the legislature to annul,, modify or change the remedies therein provided for the collection. of the rent reserved. Van Rensselaer v. Snyder, 13 N.Y., 299; Van Rensselaer v. Slingerland, 26 id., 580, 585.

From an early day there has been legislation upon the subject,, in the interest of both grantor and grantee, abolishing old and, substituting new remedies, so as to conform to changes in times. Such legislation, when subjected to review by the courts, has uniformly been pronounced constitutional, even as to pre-existing instruments, because it affected the remedy only. Id.; Van Rensselaer v. Ball, 19 N. Y., 100.

Where the right to re-enter for a breach of the covenant to pay rent was reserved, unless the lease prescribed the method of making a demand for the rent, it was necessary for the landlord to proceed according to the common law, and, either in person or by his duly authorized agent, to make an actual demand of the exact amount of rent due on the very day that it became due, at a convenient time before sunset, so that the money could be counted before night, and at the precise place w’here the rent was made payable, or if that was not provided for in the grant or lease, at the most notorious place upon the land demised. Van Rensselaer v. Jewett, 2 N. Y., 141, and cases cited on page 148. To relieve the landlord of this technical and inconvenient method of procedure, it was provided by a statute, passed before either of the leases under consideration was executed, that an action of ejectment should “ stand instead of a demand of the rent in arrear.” Laws 1805, chap. 95. This statute appears in the Revised Laws, 1 R. L., chap. 63, p. 440, § 23, was re-enacted in the Revised Statutes, 2 R. S., 505, § 30, and is the basis of § 1504 of the Code of Civil Procedure, which is as follows: “ When six months’ rent or more is in arrear upon a grant reserving rent, or upon a lease of real property, and the grantor or lessor, or his heir, devisee or assignee, has a subsisting right by law to re-enter for the failure to pay the rent, he may maintain an action to recover the property granted or demised, without any demand of the rent in arrear, or re-entry on the property.”

The plaintiff claims that this section applies to this case, and. that it should control the decision of this appeal.

When the right to distrain for non-payment of rent was abolished, it was provided by the same act that where a right of reentry was reserved in the grant or lease in default of goods whereon to distrain, ejectment might be maintained, provided a written notice of intention to re-enter was given fifteen days before the commencement of the action. Laws 1846, chap. 274, § 3.

This provision was substantially reproduced by § 1505 of the Code of which the following only is here material: 11 Where a right of re-entry is reserved and given to a grantor or lessor of real property in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of rent due, the re-entry may be made, or an action to recover the property demised or granted may be maintained by the grantor, or lessor, or his heir, devisee or assignee, at any time after default in the payment of-rent, provided the plaintiff, at least fifteen days before the action is commenced, serves upon the defendant a written notice of intention to re-enter.”

The defendant contends that this section controls and that service of the notice required thereby is essential to the maintenance of the action. The former section applied only when six months rent or more is in arrear, independent of the service of notice, and the latter, when the required notice has been served, regardless of how much, or how long, rent has been due. By neither is the remedy therein provided made exclusive and a case might arise where both sections would apply.

As the right to re-enter in default of sufficient distress was reserved by the grant in question, it is evident that if the fifteen-day notice had been served, the grantor or landlord could have maintained ejectment under this section. It was so held under the corresponding section in the act of 1846, when leases similar in this respect were under consideration. Snyder Case, 13 N. Y., 299 ; Slingerland Case, 26 id., 580.

It is also evident that unless this grant provides a right of reentry for some reason other than a default of sufficient distress, ejectment cannot be maintained until such notice has been served. It appears upon an examination of the grant that the right to reenter does not depend solely upon the ground above-mentioned, but that if either of the covenants and conditions to be performed by the grantees shall be broken, “ then and in each and every such case,” the right of re-entry is expressly conferred upon the grantor and his successors in title.

Among those conditions and covenants is the agreement to pay • the rent reserved at the time and place named. This covenant, it is to be assumed for the purpose of this appeal, was broken by the defendant. In other words, the tenant covenanted to pay the rent and agreed that if he broke this covenant the landlord might re-enter and subsequently he broke the covenant. The stipulation for a right to re-enter upon this ground is entirely independent of the stipulation giving that right in case of a failure of distress. The provisions are alternative, separated by a disjunctive conjunction and followed by the comprehensive words “ that then and in each and every such, case” a re-entry shall be lawful. Thus the plaintiff, who in his complaint founds his rights to recover upon this breach alone, had “ a subsisting right by law to re-enter for the failure to pay the rent” and, as six months’ rent was in arrear, the case comes within § 1504 of the Code, which authorizes a recovery of the property granted or demised without any demand. ■

This construction of the grant is in exact accord with the reasoning of this court in Van Rensselaer v. Jewett, supra, where an instrument precisely the same in all respects, except as to names, dates and amounts, was under consideration. Pages 142, 143. The chief judge, speaking for the court in that case, said: “ The first question which I shall consider is whether there is a right of re-entry reserved by the terms of the lease upon a simple breach of the covenant to pay the rent as reserved. * * * If we adhere to the language which the parties have used, rather than go upon intentions not expressed, it is plain, as I think, that there are two conditions of re-entry provided for by the proviso. First, a right of re-entry if ‘ no sufficient distress can be found upon the promises to satisfy such rent due and in arrear, as aforesaid.’ * * * And secondly, a right of re-entry 1 if either of the covenants and conditions hereinbefore contained on the part of the said party of the second part, his heirs and assigns, to be performed, fulfilled and kept, shall not be performed, fulfilled and kept, or shall be broken.’

“ The covenant to pay rent, as, indeed, all the other covenants of the lessee, of which there are several, precede this clause in the lease and clearly come within the language, as well as the' meaning, of this second proviso of re-entry, and to which it is plainly applicable. The covenant is absolute and unqualified, and although there may be a sufficient distress to satisfy the rent, both at the day it is made payable and at the expiration of the-twenty-eight days next thereafter, the lessor is not bound to take his remedy by distress, but may have it by way of re-entry, upon a breach of the covenant to pay rent.”

In Hosford v. Ballard, 39 N. Y., 147, 152, the court said that the act of 1846 “is in terms applicable to a case in which the right of re-entry is by the grant or lease itself made to depend upon the default of a sufficiency of goods whereon to distrain, • and not where the right of re-entry is given by the lease or grant in default of the payment of the rent when it becomes due. Thus where the right of re-entry is reserved and given to a grantor or lessor, in any grant or lease, in default of a sufficiency of goods and chattels whereon to distrain for the satisfaction of any rent due, such entry may be made at any time after default in the payment of such rent, provided fifteen days’ notice be given, eta Obviously, this does not describe the cases in which the right of re-entry is reserved and given on default of payment, without any regard to the question whether there are goo"ds and chattels on the premises or not.” See, also, Van Rensselaer v. Dennison, 35 N. Y., 393; Cruger v. McLaury, 41 id., 219 ; Keeler v. Davis, 5 Duer, 507.

The Snyder, Ball and Slingerland cases, supra, relied upon by the respondent, did not involve the point under consideration. In each of those cases the fifteen day notice had been served and the action was brought, tried, decided and a recovery sustained upon that ground only. The effect of the breach of the covenant to pay rent, and of the stipulation that if such covenant should be broken the grantor or lessor might re-enter, was neither considered nor involved.

The judgment should be reversed and a new trial granted, with costs to abide event.

All concur.  