Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of Broome County Court which granted the defendant's motion for summary judgment and dismissed the complaint of the plaintiff. Plaintiff corporation sued to recover installments of rent alleged to be due from the defendant for the months of August, September and October, 1959, pursuant to a written lease. The property paralleled the east side of Route 26 and it is contended the lease included a substantial part of the right of way of the highway belonging to the State. On April 1, 1956, Schroeders, owners of the land in question, conveyed it to a Koffman family and immediately thereafter took back a 10-year lease of the premises which was used as a Dodge-Plymouth automobile agency and which included a showroom, garage and considerable adjacent grounds for parking and displaying of motor vehicles. On April 21, 1956, Schroeders sold their automobile agency to the defendant and subleased the premises "and all the lands surrounding said buildings now utilized by the first and second parties". In 1957 the employees of the State made a survey of Route 26 and as part thereof placed a concrete monument on each side of the showroom and advised the defendant to move off from the State's right of way and this was later supplemented by a written notice from the State to move from its property. It is conceded that the right of way of the State included a substantial part of the parking area and showroom building. On December 4, 1957, the monthly rent was sent to the plaintiff with an accompanying letter advising that the defendant had been notified that part of the leased premises was owned by the State and that as of that date, the defendant considered himself to be a tenant on a month to month basis. The plaintiff did not acknowledge the letter and thereafter on June 4, 1959, defendant notified the plaintiff in writing that he would vacate the premises as of July 31, 1959. We are accepting the allegations of the complaint as true that the relationship of the plaintiff was that of an assignee of the lease rather than the owner of the property. The defendant in his answer interposed three affirmative defenses including (1) failure of consideration, (2) that defendant had been evicted and ejected from a considerable portion of the premises and (3) that the aforesaid sublease was entered into by the defendant as the result of false and fraudulent misrepresentations made by the Schroeders. The plaintiff having purported to lease to the defendant property he claimed to possess, but, actually over which he had no control or right to lease, constituted constructive eviction. There was a failure of consideration and had the defendant vacated the premises at that time (1957) there would seem to be little doubt that the defendant would be within his legal rights. ( New Chester Theater Corp., v. Bischoff, 210 App. Div. 125.) The plaintiff contends that by remaining for two years and paying the full rent, the defendant waived any rights he may have acquired at the date of discovery. When the defendant sent the letter of December 4, 1957 to plaintiff advising that he had acquired knowledge that part of the leased premises was owned by a third party, that he was not waiving any rights but electing to be a tenant on a month to month basis and the plaintiff, without any affirmative act, continued to accept rent under the particular facts of this case, it cannot be said that by remaining in possession the defendant waived any of his rights, the sublease to the defendant having failed for a lack of proper consideration. Where there has been a constructive eviction but the tenant elects to remain on a different tenancy relationship and the landlord by his action acquiesces therein, he cannot thereafter be heard to complain as to any rights he might have under the original lease which caused the eviction. We find there was a failure of consideration which resulted in a constructive eviction and the affirmative acts thereafter by the defendant created a tenancy from month to month to which the plaintiff neither complained nor objected until defendant vacated the premises. Order unanimously affirmed, with $10 costs.