
    Robert F. Bixby, Individually and as Trustee, Respondent, v. The Casino Co., Appellant.
    (New York Common Pleas
    Additional General Term,
    November, 1895.)
    A lease of premises made in 1891 contained' a clause authorizing the landlord, his heirs, successors and assigns, to. take summary proceedings whenever there was default in the payment of rent. Held, that such . provision constituted a bar to summary proceedings for nonpayment of' taxes.
    A reservation in a lease of a right of re-entry by the lessor bn default, in. performance of any of the covenants assumed by the lessee is not a; provision for summary proceedings, but for an action in ejectment.
    Appeal by the tenant from a final order in favor of ■•the landlord in summary proceedings to recover the possession of' certain real property situate in the city of New York (after an alleged default in the payment of taxes), made by the justice of the District.Court in the city óf New York for the eighth judicial district upon a trial had before him without' a j™\y. '
    _ _ _ The material facts are stated in the opinion.
    
      Moses Weinmcm, for appellant.
    
      ■Elihu Root, for respondent.
   Gtiegbrich, J.

The petitioner is the owner of the property at the corner of Broadway and Thirty-ninth street in the city of New York, known as the Casino.

On the 1st day of December, 1891, pursuant to a renewal clause of a former lease executed in 1882, the petitioner leased to a company, through whom the present tenant claims title through several mesne conveyances, the above-mentioned property.

Summary proceedings, to dispossess the tenant for failure to páy taxes as provided for in the lease were instituted and .resulted in a final order awarding to the petitioner the delivery of the possession of the property, and the defendant has brought this appeal.

The lease of 1891 contained the following clause.: That it shall he lawful for the said party of the first part and the said party of the second part, their heirs, successors or assigns, or either of them, according to the nature of their respective estates, rights and interests in the said demised premises, where and as often as default shall he made in the payment of the rent by these presents reserved, or any part thereof, to take such summary or other proceedings for the recovery of the said rent and the possession of the said premises as may be permitted by law.” The lease of 1882 contained a like provision, mutatis mutandis. This provision, we conclude with some reluctance, must be regarded as a bar to the remedy herein sought. It is a plain agreement that summary proceedings may be had. for nonpayment of rent, and under the principle espressio unius est exolusio alterius default in the payment of taxes is not comprehended. Upon first impression it might seem, that rent should be regarded as the entire consideration Which a tenant pays, to a landlord for the use of. the demised premises, whether directly as rent proper or indirectly and for his benefit in form of taxes and assessments., But the word must be interpreted in the light of its context, and, when used with respect to summary proceedings, it means .something quite different from taxes. People ex rel. Wilson v. Swayze, 15 Abb. Pr. 432; Witty v. Acton, 58 Hun, 552; 35 N. Y. St. Repr. 949; 12 N. Y. Supp. 757; see, also, the various Code provisions under the title, §§ 2231-22|65. The clause cannot be construed as though it stood only in the lease of 1882, or .even as though it found its way into the lease of 1891' by virtue, of an unconditional agreement by the landlords in the first lease to execute a renewal upon similar terms, at the option of the tenant. The landlords could, under the provisions of the lease of 1882, either grant a new lease upon the identical terms, so far as the point in question is concerned, or pay the value of the buildings erected upon the demised premises. The agreement niust be treated, therefore, as though entered into, and its terms selected, for the first time in 1891. Could it be construed as though made in 1882, the clause quoted might be regarded as a mere recital of the law as it then stood, and as without any significance respecting the point now under consideration. But in 1891 the laws relating to summai’y proceedings had been amended (Chap. 13, Laws of 1885, amending Code Civ. Proc. § 2231, subd. 3) by making default in payment of taxes an additional ground for this summary relief to the landlord. Here, therefore, is a case where the parties, at a time when "a remedy is allowed upon several grounds, explicitly indicate one of these grounds as being permitted between them. It is not a case where parties to a lease 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 ” (Martin v. Rector, 118 N. Y. 476), but where they agree that' only one of several existing remedies, as it were, shall be resorted to between them. We are aware of no reason why such a contract should not be enforced.

The reservation in the lease of the right of re-entry by the lessor upon default on the part of the lessee in performance ■of any -of the covenants assumed by the latter cannot be regarded as a provision for summary proceedings, but for an action in ejectment, and by a similar process of reasoning supports the conclusion above reached.

For .these reasons the final order should be reversed and restitution ordered to the appellant, with costs.

Bischoff, J., concurs.

Final order reversed and restitution ordered to appellant, ' with costs.  