(182 N.Y.S.) 285 (3)—Damages or apportionment of rent because 4. Landlord and tenant Where, on the failure of the landlord to put him in possession of all the demised premises, the tenant entered, but refused to pay the rent reserved, and the landlord brought proceedings to dispossess, the tenant is not entitled to damages or an apportionment of the right, unless by his pleadings he seeks the same. Appeal from Municipal Court, Borough of Brooklyn, Seventh Dis trict. Proceedings by William J. Forshaw, landlord, against Henry T. Hathaway, tenant. From a final order awarding the landlord possession, the tenant appeals. Affirmed. Argued May term, 1920, before CROPSEY, CLARK, and KELBY, JJ. Joseph Fried, of New York City, for appellant. CROPSEY, J. The respondent made a lease of two buildings. This, with his consent, was assigned to the appellant before the term began. When the appellant became entitled to possession, he could obtain but one of the buildings; the other being occupied by another tenant claiming the right to remain for an additional year. The respondent did not succeed in removing the other tenant, and the appellant took possession of the one building that was available. He had paid one month's rent in advance and before the term was to begin. After he was in possession of the one building, he refused to pay any additional rent. This proceeding was then started to dispossess him for failing to pay four months' rent at the rate specified in his lease. The appellant has never obtained possession of the other building. In his answer appellant does not plead any counterclaim for damages, nor does he seek or claim to be entitled to an apportionment of the rent. Upon the trial it was conceded that the appellant had offered to pay the rent for the one building which he occupied, and that the respondent refused to accept it. The lease did not fix separate amounts for each building. It merely fixed the rent for two buildings at a stated figure. The question is merely one of law, and there are authorities that support the conflicting contentions of the appellant and respondent. [1-3] The appellant claims that he has been evicted from a portion of the premises, and hence is not obliged to pay any rent. That this is the rule where there has been an actual partial eviction by the act of the landlord is not disputed. Fifth Avenue Building Co. v. Kernochan, 221 N. Y. 370, 373, 117 N. E. 579. The question is whether the admitted facts constitute an eviction, and, if they do not, whether the same rule applies as though there had been such an eviction. It would seem to be plain that no one could be evicted from something of which he had never been possessed. Merely refusing to put one in possession of premises, which under agreement he was entitled to, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes is not an eviction. Vanderpool v. Smith, 4 Abb. Dec. 461, 464; Etheridge v. Osborn, 12 Wend. 529, 532. See, also, Diamond v. Bollt, 174 N. Y. Supp. 642. So the decision here depends upon whether the same rule is applicable where the landlord has failed to put the tenant in possession of the entire leased premises, as where there has been an actual eviction by the landlord from a portion of them. That the same rule does not apply, and that where the landlord merely fails to put the tenant in possession of a portion of the premises, and the tenant accepts possession of the remainder, he may be sued for the entire rent or dispossessed for its nonpayment, see O'Brien v. Smith, 59 Hun, 624, 13 N. Y. Supp. 408, affirmed 129 N. Y. 620, 29 N. E. 1029; Smith v. Barber, 96 App. Div. 236, 89 N. Y. Supp. 317. That under such circumstances the landlord may neither recover his rent nor dispossess his tenant, see Lawrence v. French, 25 Wend. 443, affirmed 7 Hill, 519, approved, though only in dictum, in Christopher v. Austin, 11 N. Y. 216, 218; Sullivan v. Schmitt, 93 App. Div. 469, 87 N. Y. Supp. 714. In this conflict in the cases, the decision here must be determined by principle and upon sound reasons. The reason underlying the decisions holding that a landlord, who has evicted a tenant from a portion of the premises, may not recover the rent or the possession of the property for its nonpayment, is that the landlord is not permitted to apportion his own wrong. Having by his wrongful act taken from the possession of the tenant a portion of the demised premises, he cannot ask the tenant to live up to the terms of the letting, nor can he seek an apportionment of the rent. But this reason has no force or application, where the tenant has never been in possession, and the landlord has not taken anything from his possession. If a landlord fails to give to his tenant possession of all that the letting calls for, the tenant is not obliged to accept any portion of the premises. He may refuse to accept only a part, and, if he does so, the landlord could not compel him to pay any rent, and the tenant would have an action against him for his damages. If, however, a tenant, knowing he cannot get possession of all the property, accepts possession of a portion of it, he is not put in that position through any wrongful act of the landlord. The tenant has the option of refusing to take a portion of the premises, or of taking the portion of which he can have possession. Electing to do the latter, he takes it only under his lease, and so obligates himself to comply with its terms. This makes him liable for the rent called for by the lease, and if he fails to pay that he may be sued for it or dispossessed. Under this holding the tenant is not prejudiced. He has his election, as has been stated; and if he chooses to accept possession of a portion of the premises he has the right to bring an action to have the rent apportioned (Duhain v. Mermod Jaccard & King J. Co., 211 N. Y. 364, 105 N. E. 657, Ann. Cas. 1915C, 404), or to recover his damages arising from the landlord's failure to give him possession of the whole property as agreed, and if he is sued for nonpayment of the rent or a proceeding to remove him from the property is based thereon he may defend on the ground that he is entitled to an ap (182 N.Y.S.) portionment or to damages for the landlord's breach of the agreement. In this way the tenant's rights are fully protected. [4] On the other hand, if the contention of the appellant is sustained, the tenant may remain in a portion of the premises without paying any rent, and the landlord can neither recover the rent nor possession of the property. Here the tenant did not seek either an apportionment of his rent or damages for breach of the landlord's agreement. This not being pleaded, he had no defense to the proceeding. Cushman & Co. v. Ballow & Co., 174 App. Div. 236, 239, 160 N. Y. Supp. 1060. We think the failure of the landlord to give possession to his tenant of the entire property, where the tenant accepts possession of a portion of it, is not an eviction, nor the equivalent thereof, and that the cases holding that under such circumstances the tenant is obligated to pay the rent agreed upon state the correct rule. Such a disposition will not prevent the appellant from asserting his claim for damages arising from the landlord's breach of his agree ment. Order affirmed, with costs CLARK and KELBY, JJ., concur. (192 App. Div. 114) LETZTER v. OCEAN ELECTRIC RY. CO. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) 1. Railroads 350 (6)-Negligence in operating electric car held for jury. In an action for injuries to an automobile driver, struck by an electric car at a crossing after he had stopped on the track to avoid collision with a car approaching on another track, whether the motorman, knowing that the crossing gates were not working, was negligent, held a question for the jury. 2. Railroads 350 (13)-Contributory negligence of automobile driver held for jury. In an action for injury to an automobile driver, struck by an electric car at a crossing, where there was evidence that the flagman gave no signal of the approach of the car, whether plaintiff, in entering on the tracks without gates being lowered and without signal by the flagman, was guilty of contributory negligence held a question for the jury. 3. Railroads 301-Rights of electric cars using steam railroad superior to automobile. Where electric cars were operated on the tracks of a steam railroad, the rights of such cars at a crossing in a suburb were superior to the rights of an automobile. 4. Appeal and error 1067-Refusal to give requested instruction held prejudicial in close case. In action for injuries to automobile driver in collision with an interurban street car at suburb crossing, where the case was a close one on the issues of negligence and contributory negligence, refusal to instruct as to the railroad's superior rights on track at crossing held prejudicial error. Appeal from Trial Term, Queens County: Action by Irving Letzter, an infant, by Yetta Letzter, his guardian ad litem, against the Ocean Electric Railway Company. From a For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes judgment for $9,139.78 for plaintiff, on a verdict for plaintiff for $12,500, reduced by the court, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial granted. Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and JAYCOX, JJ. Thomas J. Brennan, of Brooklyn, for appellant. Henry M. Dater, of Brooklyn (Jay S. Jones, of Brooklyn, and Isadore Apfel, of New York City, on the brief), for respondent. MILLS, J. The action was brought to recover damages for personal injuries which the plaintiff, a boy 16 years of age, received from a collision of one of defendant's electric cars with an automobile which plaintiff was driving on January 17, 1918, at the crossing of the Long Island Railroad tracks, at or near Far Rockaway, alleged to have been caused by the carelessness of defendant's employé in operating the car. The answer admitted defendant's operation of the car over the Long Island Railroad tracks at the crossing of those tracks by Atlantic avenue, which is where the accident happened, but denied the other allegations of the complaint. The jury rendered a verdict for $12,500, but the trial justice set it aside, unless the plaintiff would stipulate to reduce it to $9,000, which plaintiff did, and judgment upon the reduced amount was entered. Appellant makes here two main contentions, namely: (a) That the finding, imported by the verdict, that plaintiff was free from contributory negligence, was against the evidence, or at least the weight thereof; and (b) that the trial justice erred to the substantial prejudice of the appellant in charging the jury that the rights of the plaintiff and defendant were equal at that crossing. Appellant also contends that its negligence was not affirmatively proven; but I do not consider the latter contention to have sufficient weight to justify discussing it independently. As to the first contention, the material facts as tended to be proven by plaintiff's evidence are the following: The railroad tracks there run approximately north and south upon. a private right of way; that is, one belonging to the Long Island Railroad Company, and used by both that company and the defendant, having three tracks. Atlantic avenue runs nearly east and west, or rather northwest and southeast, and crosses the tracks at grade. The crossing is equipped with gates, which, however, at the time of the accident were, and for several days had been, frozen, so as not to be operated; but, while plaintiff was familiar with the general situation, he did not know that the gates were not in working order. The crossing was also equipped with a flag or signal man, whose usual station was on the south side and west of the crossing. The accident happened at about 4 p. m. of a clear, cold day. The plaintiff, being then about 16 years of age, was driving an automobile easterly on Atlantic avenue, sitting in the front seat, on the left side, with his sister and another young woman upon the back seat. As he approached the crossing, there were upon his right several buildings, near the tracks, which considerably obstructed his view south along the (182 N.Y.S.) tracks. When about 20 feet from the nearest tracks, he slowed down to 7 or 8 miles an hour, and at that point he could see only about 50 feet to the south. The gates were up, having been frozen fast for several days, and the signalman was standing over by his shanty; but he waved no flag and gave no signal to the plaintiff, and at no time was out on the tracks. As plaintiff passed the line of the buildings he looked in both directions and saw nothing approaching, but as he went upon the nearest track he looked again, south, and saw a train approaching from the south on the second, or middle, track about 75 feet away. That was a Long Island train consisting of several cars. At the sight of that train plaintiff jammed on his brakes and made a quick turn of his car to the left to avoid collision with the train, and his auto stalled, with its rear on the first rail of the first track and its front facing north. He tried to start his auto with the self-starter, but did not succeed, and then he got out of the car and went to the rear wheels and examined them, the right one first and then the left one. Before getting out he looked for approaching cars in both directions and saw nothing, and before going to the left wheel he looked again and saw nothing, but on looking a second time saw defendant's electric car, which was some 50 feet in length, approaching from the north, but being then some 400 feet away. He proceeded to examine the wheel chains, when the auto was struck by the car on the other side, and the auto in turn struck the plaintiff, and the car pushed the auto and the plaintiff along some 20 feet, causing the plaintiff's injuries. The evidence of the defendant, upon the other hand, tended to show that the signalman was at the center of the crossing between the tracks, waving his flag, and that the auto approached at a high rate of speed, and that the motorman stopped as soon as he could after seeing and realizing the situation of the auto. [1, 2] I think that upon the above-recited evidence both questions, namely, that of negligence and that of freedom from contributory negligence, were for the jury to decide. If, as plaintiff claims, the flagman was at his shanty and gave no signal, I think it cannot be held contributory negligence as a matter of law, or even by the weight of the evidence, for plaintiff to approach so closely to the first track before discovering the train approaching upon the middle track; and that his action after his auto stalled may be considered as one taken in an emergency, and so for the jury to decide in regard to it. I think, also, that it was a fair question for the jury to determine whether or not the motorman, who knew that the gates were not working, should have seen the plaintiff and recognized his predicament in time to stop the car. Therefore I conclude that the first contention of appellant here is not well made. As to the second contention of appellant, namely, that of error in the charge, the question presented is far more difficult. The learned justice charged the jury that the rights of the parties—i. e., the auto and defendant's car-were upon the evidence equal at that crossing, which is the well-known rule applicable to an ordinary street car at a street crossing. To that instruction defendant's coun |
