
    Robert L. Noyes v. John Anderson.
    The defendant was the owner in fee of premises at the foot of Barclay street, in the city of New York, in which was an office known as “The Troy Day Boat Office,” and which had then been standing there for the period of twenty years.” On the 1st of May, 1850, he leased the office to one Ross, for one year, for $500, payable monthly in advance. Ross went into possession and occupied until the 1st of September, 1850, when the plaintiff was accepted by the defendant as his tenant, from that date to the 16th of November then next, on condition of his punctually paying rent as stipulated to be paid by Ross. On the 3d of September, 1850, the plaintiff, as such substituted tenant, paid to, and the defendant received, $41 62, in full of the rent for the month of September, in advance. On the morning of the 7th of September, 1860, the office was torn down by the Street Inspector of the city, under the authority claimed to be derived from 2 R. L. p. 434, § 220, and p. 434 id. §,227, and a corporation ordinance, found at page 288, § 1, of the edition of 1845. The plaintiff brought this action, claiming to receive so much of the rent paid in advance, as would be payable for the part of the month of which he had been deprived of the occupation, and also the value of his bargain, or the difference between the value of the lease and the'rent stipulated to be paid. The lease contained no covenant, and there was no fraud or misrepresentation on the part of the defendant. It was held, that if the destruction of the office was unauthorized by law, that act was a trespass, and would not exonerate the plaintiff from his liability to pay the stipulated rent. If authorized by law, the existence of the authority, and the probability of its being exercised, were presumptively as well known to the one as the other.
    That the recovery must be limited to so much of the advance rent as was proportioned to the part of the month, during which the plaintiff was deprived of the use and occupation of the office. The recovery of this much was allowed on the principle that to this extent there had been a failure of consideration, the lease having been given and taken in the mutual expectation that the plaintiff would not be disturbed in the enjoyment of the premises by any action of the corporation during the term.
    (Before Oakley, Ch. J, Paine and Bosworth, J.J)
    Argued November 8:
    December 11, 1852.
    That in the case of an eviction from demised premises, where there was no fraud or misrepresentation of the lessee inducing the taking of the lease, the measure of damages, if rent has been paid in advance, is so much of the advanced moneys as would be payable at the stipulated rate, for the unexpired part of the lease, with interest, and that if no rent had been paid in advance, no damages could be recovered by the lessee. His liability to pay rent would cease from the time of the eviction.
    Upon an executory contract to give a lease, and a failure or refusal to give one, the rule of damages is the same, if the inability or refusal is without any fault or fraud on the part of the party promising to execute it.
    Where the refusal to give a lease results from the fraudulent conduct of the defendant, consequent special damages, on proper allegations being embodied in the complaint, may be recovered.
    Tecs was an action to recover damages for the eviction of the plaintiff, hy a paramount title, from certain premises leased "to him by the defendant. The cause was tried before Ch. J. Oakley, and a jury, on the 9th of May, 1852. A verdict was rendered for the sum of $159 51, the damages claimed hy plaintiff, subject to the opinion of the court at general term.
    The following are the material facts as they appeared in evidence on the trial:—
    The defendant, Anderson, on May 1st, 1850, rented “The Troy Day Boat Office ” (a tenement standing on the pier below the foot of Barclay street) to John J. Boss, for one year, at the rent of $500. Boss entered and occupied, till about September first, paying rent. On the third September, Boss assigned lease and premises to plaintiff, Boyes, till Bovember ■ 15th, over two months. Defendant, Anderson," then received plaintiff, Boyes, in place of Boss, for said period, and plaintiff paid him $41 66 in full of the first month, in advance. Plaintiff, Boyes, then sub-let the office to Weldon, for the period of his lease, to the 15th Bovember, for $20 a-week, payable weekly in advance. On the 7th day of said September the superintendent of streets, having caused the proper notice to be put up on the building, tore it down and carted it to the public yard, evicting Weldon.
    
      
      L. Marsh, for the plaintiff,
    relied upon the following points and authorities:—■
    I. The tenement thus rented by the defendant to the plaintiff, was on the pier, in violation of law; it had no right there, and the defendant rented the building wrongfully.
    Laws of 1813, 2d vol. p. 434, section' 227, enacts, “ That no building of any kind or description whatsoever, other than the said piers and bridges, shall at any time hereafter be erected upon the said streets or wharves, or between them respectively and the river to which they respectively shall front and adjoin.”
    The streets in the above section referred to are West and South streets.— Vide p. 432, sec. 220.
    Sess. L., 1815, p. 157. Vide laws relating to city of Hew York, p. 249. The only modification of this law, which has since been made, is in permitting the erection of ferry houses on the wharves or streets.
    This Troy Day Boat office was on the pier below Barclay street, between West street and the Horth Biver, and it was not a ferry house.
    It was there, therefore, contrary, to the statute.
    H. The city of Hew York caused this office to be removed, according to law.
    Corporation Ordinances, revised edition of 1845, p. 288, sec. 1.—The Street Commissioner, &c., may order anything whatsoever, which may encumber or obstruct any street, wharf, or pier, to be removed. If not removed within twenty-four hours after notice to remove, he may order it to be carted or removed to the yard of the Superintendent of Buildings, or other suitable place.
    P. 289, sec. 6, gives same power to other officers.
    These ordinances were complied with in the removal of this office.
    HL It was contended on the trial, that there is, by statute, no implied covenant for quiet enjoyment. We answer :—
    I. We did not bring our action on any such implied covenant ; and, therefore, to deny the existence of such covenant, is to deny nothing material.
    2. The statute relied on is, “ Ho covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.”—2 R. S., 3d ed., p. 221, sec. 140.
    This is under the title of “ Alienation by Deed.”
    The memorandum signed by defendant, agreeing to take plaintiff for two months, in lieu of Ross, was no “ alienation by deedno “ conveyance;” nor is it, in any sense, within the meaning of said 140th section.
    The subject of the action is not real estate within the meaning of said section.
    This term, real estate, as here used, is subsequently defined:
    “ The term, ‘ real estate,’ as used in this chapter, shall be construed as co-extensive in meaning with ‘ lands, tenements, and hereditaments,’ and as embracing all chattels real, except leases for a term not exceeding three years.”—2 R. S., 3d ed., p. 46, sec. 42.
    Of course, a lease for a term not exceeding three years, is not “ real estate.”
    This lease, then, for two months, is not “ real estatenor is the lease a “ conveyance.”
    So, also, the term “ conveyance” is defined, and “leases for a term not exceeding three years ” are expressly excluded from the definition.—2 R. S., 3d ed., p. 47, sec. 44.
    TV". It was contended on the trial, that Ross, in his memorandum of lease, had agreed to do whatever repairs he might want, at his own cost and expense.
    If this applied to the plaintiff, Hoyes, it would not bind him to rebuild.
    To repair is not to reconstruct. To do what repairs he may want, does not impose on him the obligation to put up a new building, in violation of law.
    Y. That the defendant was the owner of the pier, does not change the case. The statute applies as well to owners as to lessees, or other occupants.
    YT. It was said, the plaintiff should have known the law, as well as the defendant.
    The defendant, Anderson, knew whether he had violated the law or not.- The plaintiff, Hoyes, could not know it. He could not know whether the building was erected before the law, or whether defendant had obtained permission from the city.
    
      Indeed, if both contracted in ignorance of the law, the defendant is liable for the consequences of his contract. He pretended to have a right to lease the office, when no such right existed.
    VII. It may be urged that defendant had acquired the right by the long standing of his building, a sort of adverse possession.
    Presumptions from long acquiescence arise between individuals, but not against a statute. This is not an acknowledged way of repealing a law. This building was put up contrary to the statute, it stayed there contrary to statute, and it'was pulled down according to statute.
    The argument is, that a man may violate the law so long that he claims to have a right to do so. That is, the defendant claims under a legal prescription to disregard the law.
    VHI. The damages were correctly estimated by the jury. They were:—
    1. The amount actually paid defendant by plaintiff; and
    2. The difference between what plaintiff had agreed to pay defendant, and what plaintiff had rented it to Weldon for. This was no fancied benefit. It was the actual worth of the contract.
    But the defendant contended we were entitled to only nominal damages.
    Such might be the rule in a technical action, on a covenant for quiet enjoyment, where no purchase money had been paid. But here $41 66 had been paid, and this action was not on the implied covenant.
    This was an action corresponding with the old action of trespass on the case.
    14 Wendell, 41, Kinney v. Watts.—Sutherland, J. “The appropriate.actionfor the injury complained of by the plaintiff, would have been a special action on the case, in which the question of "damages is entirely at large, embracing all the loss and injury, which is the necessary result of the. illegal acts complained of, if the declaration is properly framed.”
    17 Wend. 71, Driggs v. Dwight.—Action on agreement to lease. Defendant .contended that the plaintiff was only entitled to recover the difference between the actual value of the rent, and the sum he had agreed to pay as rent.
    
      The judge charged: Plaintiff is entitled to the damages necessarily resulting from breach of contract, and expenses of removing family, &c., was a proper item.
    Cowen, J., says : “ The Jury might look to the actual value of the bargain the plaintiff had made.”
    But the concession of the defendant in the case cited, would justify the recovery in the case at bar;, for the actual value of the rent was what Weldon had agreed to give.
    4 Barb. Sup. Ct. R. 261, Giles v. O’Toole.—“ In an action by a lessee against a lessor, to recover damages for a refusal to give possession of the demised premises, the plaintiff may recover the damages" arising from the expenses incurred in preparing to remove and occupy the premises, together with the difference between the real value of the rent and the sum agreed to be paid.”
    All we recovered here was the money we actually paid defendant, and, in addition, the difference between the real value of the rent (which was what Weldon agreed to pay us) and the sum plaintiff agreed to pay defendant.
    
      W. W. Niles, contra,
    insisted on the following points:—
    I. There is no warranty of title or covenant for quiet enjoyment or to repair—then the plaintiff must show affirmatively that the Corporation of New York, and not the defendant, were owners, or entitled to the privileges claimed by them.
    II. Notwithstanding the statute and ordinance relied on by the plaintiff, twenty years’ peaceable possession is pri/md facie evidence of permission from the City to build the “ Steam Boat Office,” and it being admitted that the defendant owned the fee of the premises, the right to occupy for a steamboat office became vested and absolute.
    At least the plaintiff must show affirmatively that the defendant had no right and no permission.
    III. Ross was as much bound as Anderson to know the public law, if this is considered ohe, under which the Corporation claimed—and to know the extent of their claim. If so, he took subject to it, there being no covenant in the lease—in which case it is submitted a party only lets his interest. (Lyons v. Richmond, 2 John Ch. 51, 60.)
    IV. “The court cannot judicially notice the ordinances of a Municipal Corporation.” If the plaintiff claims that the city acted under one, it should appear, or be referred to in the case. He must aver and prove his title paramount, and that he was evicted under it. (Kelly v. Dutch Church, &c., 2 Hill, p. 111. Webb & Wife v. Alexander, 7 Wend. p. 281.)
    V. There is no pretence but that the plaintiff was permitted to occupy the premises, he merely alleges damage by,the destruction of the improvements. It was not in any event a total eviction.
    VI. An eviction, if proved, only discharged the rent.
    Vn. Only particular words such as “ demise” or “ grant,” imply a covenant for quiet enjoyment. (Frost v. Raymond, 2 Caius, 188. Platt on Covenants, Law Library, vol. iii. p. 40.)
    VIH. If the plaintiff" can recover at all, the measure of damages is the consideration money paid and interest, or, in the present case, the rent paid in advance less the proportion from 1st to 7th September, the time plaintiff was in possession. (Kinney v. Watts, 14 Wend. p. 38., Dimmick v. Lockwood & Or., 10 Wend. p. 142. Kelly v. Dutch Church, &c., 2 Hill, p. 105. N. Y. & H. R. R. Co. v. Story, 6 Barb. 419, Peters v. McKeon, 4 Denio, 546.)
    IX. In any event the verdict as recorded is excessive. The plaintiff has a verdict for the whole amount Weldon promised to pay—then for one particular week which he refused to pay, and then for the whole amount he had paid defendant, although he occupied from 1st to 7th Septembér, nearly one fourth of the whole time.
   By the Court. Bosworth, J.

On the 1st of May, 1850, the defendant rented to Ross the office at the foot of Barclay street, for one year from that date, for $500, payable monthly in advance. The office is known as “ The Troy Day-Boat Office.” The instrument in writing, or lease, signed by the defendant, contained no promise on his part of any kind whatever. He “ owned the property (leased) in fee simple.”

Boss went into possession, and occupied until the 1st of September, when Hoyes went into possession. On the 3d of September, Hoyes paid to the defendant $41 66, for one month’s rent of the office in advance, from the 1st of September to the 1st of October. Anderson signed a written agreement, dated September 3,1851, and delivered it to Hoyes, whereby, as stated therein, in consideration of the punctual and prompt payment of the rent as stipulated to be paid by Eoss, he consented to receive Hoyes as a tenant in the place of Eoss, from the 1st of September to the 15th of Hovember following.”

The office was torn down on the morning of the 7th of Septemoer by the street inspector.

The appeal presents substantially but two questions:

First, Is the plaintiff entitled, upon all the facts and circumstances of this case, to recover anything ?.

Second, If entitled to recover, what is the rule by which the damages are to be ascertained?

If an action .will lie on the facts of this case, it must be for the reason that the plaintiff has paid money upon a consideration which has failed, and which in equity should be refunded. There is no attempt to prove any fraudulent misrepresentation, or concealment of any material fact. It is conceded that the defendant owned the fee of the premises on which the office stood. He had therefore all the right to grant the lease in question which any owner in fee of such property possessés.

It was unlawful, or so the plaintiff insists, to erect and continue this office on the pier on which it stood. 2 B. L. p. 432, § 220, and p. 434, 227, are cited as legislative prohibitions against such erections.

Assuming that this act divested the owner of the pier of all right to erect or continue such a structure on the pier, this fact was presumptively as well known to Hoyes as to the defendant. If is declared to be a public act (id. p. 660, § 315), and every citizen is presumed to know the law. There is nothing in the case to show that its existence and particular provisions were not as fully known to the one party as to the other. If the effect of this statute be such as the plaintiff’s "counsel contends, then it was in the power of the city to tear down the building, if not removed within twenty-four hours after a notice to remove it had been given by the street commissioner. (Cor. Ord. edition of 1845, p. 288, § 1.)

The destruction or removal of the building, as both parties must be presumed to have known, when Hoyes became a tenant of the defendant, and paid one month’s rent in advance, was liable to occur at any time on twenty-four hours’ notice. It appears, however, to have been standing, and to have been used for the period of twenty years. To this, so far as the evidence shows, no objection had been made by the municipal officers of the city.

We think it a just conclusion, that both parties contracted, the one to rent, and the other to hire and pay monthly in advance, on the mutual understanding and expectation that the plaintiff would not be disturbed in the enjoyment of the premises by any action of the city corporation. That this was the understanding and expectation of the defendant and Boss, is shown by the fact that the former leased and the latter hired the premises for a year, which did not expire until the first of May subsequent to the time of pulling down the office. The consideration of the payment by the plaintiff on the third of September of $41 66 was the enjoyment to be had of the premises for the whole of that month. This consideration failed as to twenty-four days of the time for which it was paid, without the fault of either party,, and contrary to the understanding ■ of both. And we think it just and equitable that the plaintiff should at all events recover back the rent for so much of the month as he was deprived of the enjoyment of the premises.

There is nothing tending to show that the tenant, on hiring the office, and paying a month’s rent in advance, was understood by both parties to take the risk of the office being permitted to remain during the term. Unless this was so, there has been a partial failure of the consideration for which the rent was paid and received.

To the amount of such failure the recovery must be limited.

If the lease had contained covenants of seizin and for quiet enjoyment, and the plaintiff had been evicted by a paramount title, the whole amount which he could have recovered back, in an action upon any of the covenants, would be the moneys paid in advance, deducting therefrom rent at the, stipulated rate for such portion of time, for which- the advance payment was made, as the lessee had enjoyed the premises, with interest on such balance.

It is regarded as settled law in this state that the ultimate extent of a grantor’s responsibility, under any or all of the usual covenants in his deed, is the purchase money with interest. (4 Kent Com. 476, 477; 5 J. R. 49; 12 id. 126; 10 Wend. 142.)

In Kelly v. Dutch Church of Schenectady (2 Hill, 116), the same rule was applied to an eviction from demised premises. The court said: “ Following that analogy, the rents reserved in a lease, where no other consideration is paid, must be regarded as a just equivalent for the use of the demised premises. The parties have agreed to so consider it. In case of eviction, the rent ceases, and the lessee is relieved from a burden which must be deemed equal to the benefit he would have derived from the continued enjoyment of the property. Having lost nothing, he can recover no damages.” (14 Wend. 41, Kinney v. Watts.)

In this case, there is no covenant or promise for the quiet enjoyment of the premises by the lessee. There is no fraud on the part of the lessee, and the plaintiff has not been disturbed in his possession by any wrongful act of the lessor. On such a state of facts, it is not perceived on what principle the liability of the defendant is any greater than it would have been if he had expressly covenanted that the plaintiff should not be disturbed during the period of his stipulated tenancy.

He accepted the plaintiff as his tenant fpr two months and a half. Each party knew at the time, or is presumed to have known, that the office might lawfully be destroyed by public authority at any time after twenty-four hours’ notice. It was so destroyed during the plaintiff’s tenancy. At least, this assumption is the only one on which his right rests to recover anything. For if the destruction of the office was not authorized by law, but was the a.ct of a trespasser, the plaintiff has not only no right of action, but is liable to pay rent for the residue of his term. The plaintiff’s counsel contended that the plaintiff was entitled to recover the value of his bargain, and also to recover back the rent for the period of the month which he had paid in advance, and during which he was deprived of the possession. The case of Driggs v. Dwight, 17 Wend. 71, and Giles v. O'Toole, were cited in support of this proposition. The former case was an action upon an executory contract to give a lease. Kinney v. Watts, does not appear to have been cited by counsel on the argument, nor to have been adverted to by the court in its opinion. On the trial, the defendant’s counsel conceded that the plaintiff was entitled to recover the difference between the actual value of the rent, and the sum he had agreed to pay as rent (p. 73). The plaintiff was also allowed to recover the expenses of removing from his residence to the demised premises, although no such damage was alleged in his declaration. There are several cases which recognise the right of a person who has contracted for a lease to recover such damages when they are averred in the declaration, and the refusal of the defendant to give a lease does not result from his inability, without fault on his- part, but from his fraudulent or perverse refusal. There was no other ground for the refusal in Driggs v. Dwight. Giles v. O’Toole, 4 Barb. S. C. R. 261, and Lawrence v. Wardwell, 6 id. 423, were actions to recover damages in consequence of the refusal of the defendants, the lessors, to give possession of the demised premises, according to the terms of the lease.. It was in their power to have given the possession, and.their refusal to do'so was without any excuse which the court could approve.

It was decided in the supreme court of this state, in 1829, that a Iona fide vendor, who covenants to sell and convey land believing he has a good title, but who on discovering before any part of the consideration money has been paid that he has no title, is not liable to any damages for refusing to convey (Baldwin v. Munn, 2 Wend. 399).

The same court, in 1847, in Peters v. McKeon, 4 Denio 546, re-adjudged the sainé point, and also held that in such a case, the plaintiff could not recover for his expenses of removing upon the premises, nor for any improvements which he had made upon them.

The measure of damages in such a case was held to be substantially the same as it is in the case of an eviction, after entering into possession under an executed sale.

Both of these cases recognise the rule, that where a party contracting to give a lease, or to convey, has the power to perform his contract, but perversely refuses, his refusal becomes fraudulent, and the other party may recover the value of his bargain, and any special damage actually resulting from the violation of the contract.

Retner v. Braugh, 11 Penn. R. 127, holds the same doctrine, and distinguishes between the. cases where the conduct of the lessor or grantor is iond fide, and those in which it is fraudulent.

Where it is fraudulent, the defrauded party, in an action on the case founded on fraud, may recover the value of his bargain, and any special damage, which in judgment of law has resulted from the fraud.

In this case, there is'no fraud on the part of the defendant, nor any express promise that the plaintiff should have quiet enjoyment of the premises to the 15th of November.

I do not think there is anything in the terms of the paper or lease given to Boss, or in that given to the plaintiff, from which such a promise of the defendant can be implied by law. But if there was an express promise for quiet enjoyment, as the case is free from fraud, the plaintiff could only recover back so much of the rent advanced as was paid for the twenty-four days in September, during which he was deprived of the possession, and interest from the 7th of that month.

The rent for twenty-four days, at $41 66 for the month, is $33 33.

The verdict must be set aside, and a judgment entered in favor of the plaintiff for $33 33, and interest from September 7,1850.  