[3] Does the complaint state facts sufficient to constitute a cause of action against the defendant, John Johnson? It is alleged that the fund came into his hands as trustee. A cause of action against an individual is distinct from a cause of action against the same individual as a trustee or representative (United Press v. Abell Co., 73 App. Div. 240, 244, 245, 76 N. Y. Supp. 692; Wetmore v. Porter, 92 N. Y. 76, 84; First National Bank v. Shuler, 153 N. Y. 163, 173, 47 N. E. 262, 60 Am. Rep. 601), and a suit against one sued as an individual does not bind him as trustee, and, conversely, judgment against one sued in a representative capacity does not conclude him in a subsequent action brought by or against him as an individual, although the same identical issue is involved, and the decision in the first action was upon the merits (First Nat. Bank v. Shuler, supra, 153 N. Y. 173, 47 N. E. 262, 60 Am. Rep. 601, and authorities there cited). It is claimed, not that John Johnson owes the plaintiff anything, but that John Johnson, as trustee, holds in his possession certain funds belonging to Mr. Youngmann, which it is his duty as trustee to distribute to creditors; but the action is brought against John Johnson individually, and it seems clear that there is a failure to show. any obligation which John Johnson individually owes to the plaintiff. [4] But beyond this is the fact that a creditor at large cannot, under the rules governing equitable actions, reach the assets of his debtor without having first exhausted his remedies at law. He must, except in extraordinary cases, where it is impossible to pursue such remedy, reduce his claim to judgment and have the execution returned unsatisfied. Then, and then only, will a court of equity intervene to give him relief by reaching equities which an execution could not make available. Speaking of the equitable rules which must be observed. in a case of this character, the court in Ocean National Bank v. Olcott, 46 N. Y. 12, 18, say:

"One of them is that, before the equitable interests of a debtor can be reached in equity, all available legal remedies must be exhausted. It is not necessary to hold that such an action is, in strictness, a creditors' bill, and that jurisdiction depends upon a technical compliance with the statute. The general powers of a court of equity over trusts and frauds may be conceded as sufficient to confer jurisdiction, but this concession does not dispense with the rule of equity, which existed prior to and independently of the statute, that creditors must exhaust available legal remedies before resorting to courts of equity to reach equitable interests." I. & T. N. Bank v. Quackenbush, 143 N. Y. 567, 571, 38 N. E. 728, and authorities there cited.

[5] At common law Mr. Youngmann would have an undoubted right to pay any of his creditors to the exclusion of others, acting in good faith, and no fraud is suggested here. Just what equities the plaintiff would have against the creditors who have entered into the agreement alleged is not clear. There does not appear to have been an assignment for the benefit of creditors generally. Mr. Youngmann has simply agreed with some of his creditors that he will permit the sale of his goods by a trustee and the pro rata distribution of the fund among these creditors. He has a right to pay them what he owes them, or to pay a group of them a part that he owes them, and, in the absence of a bankruptcy proceeding, no way suggests itself

how the plaintiff can prevent the consummation of this purpose. Certainly under the complaint in this action he is not entitled to the relief which he demands.

The demurrer is sustained, with costs.

PADDELL v. JANES et al.

(Supreme Court, Special Term, New York County. April 22, 1915.) LANDLORD AND TENANT 130-EXPRESS COVENANT AGAINST EVICTION BY SUIT-BREACH.

Where a lessor covenanted in the lease that the tenant during the term should "peaceably and quietly have, hold, and enjoy the demised premises, without any manner of let, suit, trouble, or hindrance of or from the said party of the first part, or any other person whomsoever," the unreasonable bringing of an ejectment suit against the tenant and the prosecution thereof, causing him serious pecuniary damage, constituted a breach of the covenant, giving rise to a right of action in the tenant, without any actual abandonment or surrender of possession by him, or his physical expulsion from the premises.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 470-481; Dec. Dig. 130.]

Action by Timothy F. Paddell against Elisha Harris Janes, executor. and Martha Ridgway Weed, executrix. On motion by defendants for judgment on the pleadings. Denied.

Keith & Abbot, of New York City (Everett V. Abbot, of New York City, of counsel), for plaintiff.

Frederick L. C. Keating, of New York City (Henry Amster, of New York City, of counsel), for defendants.

DAVIS, J. This is a motion by defendants for judgment on the pleadings. The action is brought by the lessee against the executor and executrix of lessor for damages for breach by the defendants and their testatrix, Jane M. Janes, of a covenant for quiet enjoyment contained in a lease for 21 years of premises on the south side of FortySecond street, near Seventh avenue, New York City. The lessor was Jane M. Janes, above mentioned. The covenant in question is as follows:

"And the said party of the first part does covenant and agree that the said party of the second part, upon paying the rent above reserved and performing the covenants and agreements aforesaid on his part, shall and may at all times during the said term hereby granted peaceably and quietly have, hold and enjoy the said demised premises without any manner of let, suit, trouble or hindrance of or from the said party of the first part or any other person whomsoever."

The complaint alleges that the plaintiff paid all the rent due and performed his part of the covenants; that on or about September 3, 1909, the said Jane M. Janes, without reasonable cause therefor, falsely and maliciously pretended (1) that plaintiff as tenant had failed to perform the covenants; (2) that the lease therefore had terminated on or before September 1, 1909; (3) that plaintiff was holding over without her permission as landlord; (4) that pursuant to these pretenses she wrong

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

fully and vexatiously made application to the Municipal Court of the City of New York, Third District, for a final order to remove the plaintiff as tenant from the possession of the premises in question and thereafter wrongfully and vexatiously prosecuted her application until it was finally denied by the Municipal Court and until the final order thereupon was affirmed upon appeal by the Supreme Court, Appellate Term. It is also alleged that with like pretenses and in like manner the said Jane M. Janes brought an action in the Supreme Court on or about August 12, 1910, to recover possession of the premises in question with damages in the sum of $12,000 for withholding possession of the premises since September 1, 1909, and wrongfully and vexatiously maintained said action until her death, and that thereafter the other defendants, as her executor and executrix, wrongfully and vexatiously continued to maintain the action until it was discontinued upon their application upon payment of costs, but against, the opposition of the plaintiff. It is also alleged that thereafter the said Jane M. Janes, with like pretenses and in like manner on or about the 2d day of June, 1911, applied to the Municipal Court for a final order to remove the plaintiff as tenant from the possession of the demised premises for the nonpayment of rent accruing after the 1st day of September, 1909, and thereafter wrongfully and vexatiously prosecuted said application until it was finally denied and the proceeding finally dismissed by the Supreme Court. The complaint also alleges the death of said Jane M. Janes on the 29th of August, 1913, and the appointment and qualifying of the defendants as her executor and executrix.

It thus appears that three unsuccessful and inconsistent proceedings were brought by the lessor against the lessee to deprive him of his possession of the demised premises, to wit: (1) On September 3, 1909, in the Municipal Court, the application for a final order to remove him in which she claimed a forfeiture on September 1, 1909, because of failure to pay rent; (2) on August 12, 1910, the action of ejectment in the Supreme Court in which she claimed a forfeiture on September 1, 1909, because of failure to pay rent, and $12,000 damages for withholding possession since September 1, 1909; and (3) on June 2, 1911, the second application to the Municipal Court for a final order to remove the lessee from possession of the premises because of the failure to pay rent accruing since September 1, 1909. According to the complaint these suits were baseless, malicious, and wrongful, and therefore constituted a breach of the covenant.

The complaint further alleges that by means of these acts the plaintiff had been largely deprived of the use and enjoyment of the premises and of the possession thereof, that the rental value thereof was largely diminished in his hands, and that he has been put to great costs and expenses, and particularly to great costs and expenses in defending the applications to the Municipal Court and in defending the action in the Supreme Court and has been prevented from renting the said demised premises to undertenants upon advantageous terms, and has otherwise suffered damages in the sum of $25,000. The answer is a general denial.

The defendants claim that the complaint fails to state a cause of action for a breach of this covenant for quiet enjoyment, in that it does

not allege an abandonment of the premises by the plaintiff lessee. They claim that, in order to succeed, the plaintiff must allege and

prove:

"That he was physically expelled from the premises or that the set of facts which he sets forth compelled him to and he did surrender possession of the demised premises, and that he is not in possession."

It is quite true that the complaint does not contain any allegation of a physical expulsion from or abandonment of the demised premises, except that it does allege that the plaintiff was deprived of the use and enjoyment of the premises and largely deprived of the possession thereof. However, I do not interpret this allegation to mean that the plaintiff actually lost possession of any part of the premises, but only that his "beneficial enjoyment" was largely diminished by the acts of his lessor. On the other hand, the plaintiff contends that under the peculiar wording of this express covenant there can be a breach of it without physical expulsion from or abandonment of the demised premises and that therefore it is not essential to allege or prove expulsion or abandonment. In other words, he claims that he is suing not on a covenant in the usual form or on an implied covenant, but on a special express covenant, more specific and of wider scope than the usual form, and which when interpreted according to the intention of the parties must be deemed to be broken upon the commission by the landlord of acts alleged in this complaint. Chaplin says:

"The usual form of an express covenant for quiet enjoyment is that the lessee, on paying the rents reserved and performing the covenants of the lease, shall and may peaceably and quietly have, hold, and enjoy the demised premises for the designated term. If not expressed in a lease for years, it is implied." Chaplin on Landlord and Tenant, p. 221.

The covenant in the case at bar is not in the usual form of covenants for quiet enjoyment, and the learned counsel for the defense in his brief states that he has failed to discover "any covenant like it which has been construed by the courts." I have not found, nor have counsel brought to the court's attention, any case in this state where this covenant in this form has been construed by authority. There are several cases in New York which would seem at first sight to support defendants' contention and to hold that there can be no breach of any covenant for quiet enjoyment, no matter what its form, without an eviction of the tenant. See Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170; Mayor v. Mabie, 13 N. Y. 151, 64 Am. Dec. 538; Edgerton v. Page, 20 N. Y. 281.

We believe, however, that the court in those cases did not intend to lay down a hard and fast rule of construction to be applied to all covenants for quiet enjoyment regardless of their terms, but merely announced a rule of construction for the particular form of covenant then before it in relation to the facts of those particular cases. In those cases the actions were for rent-the covenant for quiet enjoyment was implied. In two of the cases, to wit, Boreel v. Lawton and Edgerton v. Page, the tenant remained in possession, but in the other (Mayor v. Mabie) it appeared that the landlord had made an actual entry upon the premises. In all of the cases the tenant claimed a breach of the covenant for quiet enjoyment, and set up that breach

either as a defense or as a counterclaim. The court held that there was a breach of the covenant in the case where the landlord had interfered with the tenant's possession by entry, but in the other case held there was no breach because there had been no expulsion of the tenant. It was in connection with these special facts that the court said that there could be no breach of this covenant without an eviction. The conclusion there reached by the court simply expressed its view of the intention of the parties in entering into the particular covenant then under consideration; the intention being that so long as the tenant remained in full possession he must pay all the rent, and that the covenant should not be deemed broken unless by the act of the landlord the tenant was deprived in whole or part of the demised premises. And that interpretation is reasonable when the covenant there implied is considered in its relation to the tenant's obligation to pay rent as long as he occupies the premises. And in my opinion these cases go no further than to hold that the tenant cannot get rid of his obligation to pay rent when sued upon his covenant to pay, unless he shows that by some act of the landlord he has been deprived of possession in whole or in part. Tucker v. Cooney, 34 Hun, 227, 231; Rea v. Minkler, 5 Lans. 196; Eller v. Moore, 48 App. Div. 403, 63 N. Y. Supp. 88; Shattuck v. Lamb, 65 N. Y. 499, 22 Am. Rep. 656; Scriver v. Smith, 100 N. Y. 471, 3 N. E. 675, 53 Am. Rep. 224; McAlester v. Landers, 70 Cal. 79, 11 Pac. 505. In construing the covenants in the Lawton, Page, and Mabie Cases the court doubtless had in mind the usual form of implied covenant, such as referred to by Chaplin, supra, and did not consider at all the question of whether, under an express covenant like the one at bar, the bringing of a suit in ejectment by the landlord, as was done here, would constitute a breach.

The language of the above cases must be taken to refer only to the special facts of the cases then before the court and to the particular terms of the covenant then under consideration, and not to every covenant for quiet enjoyment whatever its form. For it is certainly within the power of the parties to a lease to make a covenant for quiet enjoyment providing therein for its breach even without eviction, actual or constructive. Every covenant for quiet enjoyment becomes therefore a subject for construction by the court according to its own terms. "All covenants are to be construed according to the intent of the parties, ascertained under familiar principles applicable to all like instruments, and in case of doubt the meaning most favorable to the lessee is preferred." Chaplin on Landlord and Tenant, p. 101.

The form of covenant in question here is quite like the forms in use in England and unlike the usual form in use in this state prior to the passage of section 253 of the Real Property Law (Consol. Laws, c. 50), relative to the construction of covenants in deeds. Platt gives the English form as follows:

"And also that it shall and may be lawful to and for the said purchaser, his heirs and assigns, immediately upon and after the execution of these presents, and from time to time, and at all times forever hereafter, to enter into and upon, have, hold, use, occupy, possess and enjoy the said messuages, etc., hereby released, or otherwise assured, or intended so to be, and every part