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§ 226. Effect of renewal on sub-lease. The surrender of an under-lease is not requisite to the validity of the surrender of the original lease, where a new lease is given by the chief landlord. Such a surrender and renewal do not impair any right or interest of the chief landlord, his lessee or the holder of an under-lease, under the original lease; including the chief landlord's remedy by entry, for the rent or duties secured by the new lease, not exceeding the rent and duties reserved in the original lease surrendered.

Formerly section 196, Real Property Law of 1896, chapter XLVI, General Laws:

§ 196. Effect of renewal on sub-lease. The surrender of an under-lease is not requisite to the validity of the surrender of the original lease, where a new lease is given by the chief landlord. Such a surrender and renewal do not impair any right or interest of the chief landlord, his lessee or the holder of an under-lease, under the original lease; including the chief landlord's remedy by entry, for the rent or duties secured by the new lease, not exceeding the rent and duties reserved in the original lease surrendered.93

Section 196 was formerly 1 Revised Statutes, 744, section 2:

§ 2. If any lease be surrendered in order to be renewed, and a new lease be made by the chief landlord, such new lease shall be good and valid to all intents and purposes, without a surrender of all or any of the under leases derived out of such original lease so surrendered; and the chief landlord, his lessee, and the holders of such under leases, shall enjoy all their rights and interests, in the same manner and to the same extent, as if the original lease had been still continued; and the chief landlord shall have the same remedy by distress, or entry upon the demised premises for the rents and duties secured by such new lease, so far as the same do not exceed the rents and duties reserved in the original lease so surrendered. (Amended by chap. 274, Laws of 1846, abolishing distress.) 95

History of this Enactment. At common law, a lease for lives or years could not be renewed without a surrender not only of the lease itself, but of all the under leases which had been derived out of it; so that it was in the power of the under tenants to prevent or delay the renewal of the principal lease by refusing to surrender their under leases.96 But by statute 4 George II, chapter 28, section 6, this hardship was remedied, and the new lessee was given

93 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

94 Repealed, chap. 547, Laws of

95 Conkey v. Hart, 14 N. Y. 22. 96 Archbold, Landl. & Ten. 64.

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remedies against the original sub-tenants, holding under the original demise. This statute being passed only in 1731, did not extend to the province of New York. But it was re-enacted here in 1774.97 After Independence" the statute was again re-enacted in the general revision of 1788,98 and thence passed into subsequent revisions,99 and finally into the Revised Statutes1 and the present law.2

Assignment or Sublease. Whether the arrangement by which tenant parts with his term is an assignment of the lease, or a sublease, is sometimes a very close question, depending on the intention, or on some slight modification of the original lease.3 Subletting is not an assignment, and yet virtually underletting the entire interest or estate, by whatever name it is called, is in law an assignment.5

Effect of Surrender of a Lease. The effect of such a surrender as between the parties is to merge the term. But the rights of strangers and subtenants are not thereby affected; they are preserved, while the equitable rights of the original landlord against the under tenants are protected and secured by this statute. A subtenant on a surrender of the original lease becomes the tenant of the original landlord if he continue in possession."

Surrender, how Made. A surrender of a demise for a term of years must now be in writing, unless it have less than a year to run.9 But a surrender may be implied from acts inconsistent with the relation of landlord and tenant.10 Thus, the acceptance of a valid Greenberg, 39 id. 342; cf. Coe v. Hobby, 72 N. Y. 141, 146; Ballou v. Baxter, 28 N. Y. St. Rep. 431; Bove v. Coppola, 45 Misc. Rep. 636.

97 Chap. 14, N. Y. Laws of 1774. 2 J. & V. 233, § 26.

98

99 K. & R. 134, § 26; 1 R. L. 442, § 26.

11 R. S. 744, § 2; 4 Kent, Comm.

104.

2 § 226, supra.

3 Shumer v. Hurwitz, 49 Misc. Rep. 121; Post v. Kearney, 2 N. Y. 394; Collins v. Hasbrouck, 56 id. 157; Herzig v. Blumenkrohn, 122 App. Div. 756.

4 Herzig v. Blumenkrohn, 122 App. Div. 756.

5 Stewart v. Long Island R. R. Co., IC2 N. Y. 601, 608.

6 Archbold, Landl. & Ten. 84; 4 Kent, Comm. 104; Weis v. Mendelson, 24 Misc. Rep. 692; O'Shinsky v.

7 Moskowitz v. Diringen, 48 Misc. Rep. 543.

8 § 242, Real Prop. Law; Rowan v. Lytle, 11 Wend. 616; Allen v. Jaquish, 21 id. 628.

9 Smith v. Devlin, 23 N. Y. 363; Tallman v. Earle, 37 N. Y. St. Rep. 271; Sherman v. Engel, 18 Misc. Rep. 484.

10 Gray v. Kaufman Dairy, etc., Co., 162 N. Y. 388; Dorrance v. Bonesteel, 51 App. Div. 129; Warren v. Cochrane, 128 Fed. 553; Gutman v. Conway, 45 Misc. Rep. 368.

and complete new lease, contract, or deed of the fee, may operate as a surrender in law without an express surrender.11 A surrender cannot be to a stranger.12

Abandonment not a Surrender. An abandonment under a special law permitting lessees to vacate, is not a surrender.13

Surrender does not Affect Rent Accrued.

Where surrender takes ef

fect from a day certain, tenant is not relieved from rert then accrued and payable, even though a payment is for a time subsequent to actual surrender.14

11 Bailey v. Delaplaine, 1 Sandf, 5; Livingston v. Potts, 16 Johns. 28; Van Rensselaer's Heirs v. Penniman, 6 Wend. 569; Schieffelin v. Carpenter, 15 id. 400; Smith Niver, 2 Barb. 180; Bedford v. Terhune, 30 N. Y. 453; Coe v. Hobby, 72 id. 141; Chamberlain v. Dunlop, 126 id. 45; Lewis v, Angermiller, 89

V.

Hun, 65; Underhill v. Collins, 132
N. Y. 269, 272; James v. Coe, 31
Misc. Rep. 653.

12 Barkley v. McCue, 25 Misc. Rep. 738.

13 § 227, Real Prop. Law; Laws of 1860, chap. 345.

14 Kahn v. Simons, 25 Misc. Rep. 737; Barkley v. McCue, id. 738.

§ 227. When tenant may surrender premises. Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and.no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender.

§ 197. When tenant may surrender premises. Where any building, which Formerly section 197, Real Property Law of 1896, chapter XLVI, General Laws:

is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender.15

Section 197 was formerly chapter 345, Laws of 1860:

AN ACT in relation to the rights and liabilities of owners and lessors, and of lessees and of occupants of buildings.

Passed April 13, 1860.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.

§ 3. This act shall take effect immediately.16

Common Law. At common law, if a lease contain no provision to the contrary, and there is a covenant to pay rent, the tenant can be compelled to pay rent though the buildings are destroyed by 16 Repealed, chap. 547, Laws of 1896.

15 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

fire,17 or lightning,18 provided such destruction was not before entry,19 and the lease covers the ground.20 The landlord is not obliged to rebuild in the absence of an express covenant so to do,21 nor can he be compelled to rebuild by an action in equity, even if there is a covenant to rebuild.22 A covenant to rebuild, if express, binds personal representatives.23 An ordinary covenant to repair is not, however, a covenant to rebuild.24

Landlord's Obligations to Tenant. Unless there is a covenant to repair the landlord is under no obligation to repair, even if tenant has covenanted to make inside repairs only.25 In leasing real property, in the absence of fraud, there is no implied covenant that the premises are fit for habitation. The tenant hires at his peril.26 But if the premises are perilous or are infected it seems the landlord is bound to disclose it.27 In recent law there seems to be a disposition to depart from the hard and fast principles indicated, and the

17 Hallett v. Wylie, 3 Johns. 44; Gates v. Green, 3 Paige, 355; Graves v. Berdan, 26 N. Y. 498, 501.

18 Babcock v. The Montgomery Co. Mut. Ins. Co., 4 N. Y. 326.

19 Wood v. Hubbell, 5 Barb. 601. 20 Graves v. Berdan, 26 N. Y. 498; Doupe v. Genin, 45 id. 119, 123.

21 Doupe v. Genin, 45 N. Y. 119; Smith v. Kerr, 108 id. 31, 34.

22 Beck v. Allison, 56 N. Y. 366. 23 Chamberlain v. Dunlop, 126 N. Y. 45.

24 Butler v. Kidder, 87 N. Y. 98; Ducker v. Del Genovese, 93 App. Div. 575; Street v. Central Brewing Co., 10 id. 3; Markham v. Stevenson Brewing Co., 104 id. 420, 423; cf. Allen v. Culver, 3 Den. 284; McIntosh v. Lown, 49 Barb. 550; May v. Gillis, 169 N. Y. 330.

25 Witty v. Matthews, 52 N. Y. 512; Bronner v. Walter, 15 App. Div. 295; Ely v. Fahy, 79 Hun, 65; Watson v. Almirall, 61 App. Div. 429; Castaquette v. Nicchia, 76 id. 371; Wynne v. Haight, 27 id. 7; Laird v. McGeorge, 16 Misc. Rep. 70; Jones v. Brumme, 120 App. Div. 494; Richmond v. Lee, 123 id. 279; Lehmaier v. Jones, 100 id. 495, 497;

Boden v. Scholtz, 10i id. 1; Faron v. Jones, 49 Misc. Rep. 47; Schiff v. Poulitzer, 51 id. 611, 613; Schiavone v. Callahan, 52 id. 654; Goetchins v. Gale, 57 id. 192; Bailey v. Krupp, 59 id. 459; Zelzer v. Cook, 62 id. 471.

26 Daly v. Wise, 132 N. Y. 306; Franklin v. Brown, 118 id. 110; Sherman v. Ludin, 79 App. Div. 37; Prahar v. Tousey, 93 id. 507; cf. Meserole v. Sinn, 34 id. 33, 35, 161 N. Y. 59; Carey v. Kreizer, 26 Misc. Rep. 755; Jaffe v. Harteau, 56 N. Y. 398; Watson v. Almirall, 61 App. Div. 429; Steefel v. Rothschild, 179 N. Y. 273, 277; Kushes v. Ginsberg, 99 App. Div. 417; Smith v. Donnelly, 93 id. 569, 573; Flannery v. Simons, 47 Misc. Rep. 123; Bayles v. Clark, 115 App. Div. 33; Richmond v. Lee, 123 id. 279; Scheffler Press v. Perlman, 130 id. 576.

27 Cesar v. Karutz, 60 N. Y. 229; cf. Daly v. Wise, 132 id. 306; Minor v. Sharon, 112 Mass. 477. 487; Steefel v. Rothschild, 179 N. Y. 273; Smith v. Donnelly, 93 App. Div. 569; s. c., 45 Misc. Rep. 447; Uggla v. Brokaw, 117 App. Div. 586.

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