Opinion
February, 1905.
Wyatt Trimble, for appellant.
Benjamin Tuska, for respondent.
In each of these proceedings to recover possession of real property for the nonpayment of taxes, the justice made a final order in favor of the tenant, putting his decision upon the express ground that the Municipal Court "has no jurisdiction in the premises and that these summary proceedings under the statute will not lie because a right of 're-entry' for the same cause is reserved in the lease." The premises are now held under a lease for twenty-one years, executed in 1892, being a second renewal of a lease executed in 1850. It is expressly agreed in the present lease that it is made "upon the same terms, conditions and covenants as are in the said original indenture of lease contained and expressed." The rights and remedies of the parties are then to be determined as if the terms, conditions and covenants of the lease of 1850 were incorporated into the present lease of 1892. Among these covenants is one whereby the lessee covenants and promises to pay the yearly rent on the days and times and in the manner set forth in the lease. By another covenant the lessee covenants and promises to pay and discharge all taxes, assessments, etc., laid, assessed or imposed upon the property. It is also provided as follows: "That if the yearly rent above reserved, or any part thereof shall be behind or unpaid for the space of ten days after any day of payment whereon the same ought to be paid as aforesaid, or if default shall be made in any or either of the covenants, conditions, provisions or agreements herein contained * * * it shall and may be lawful for the party of the second part, his heirs or assigns, into or upon the said demised premises or any part thereof in the name of the whole to re-enter and the same to have again, etc." It is not to be doubted that the remedy contemplated by the last-quoted paragraph of the lease is the action of ejectment, and not summary proceedings under the statute. Michaels v. Fishel, 169 N.Y. 381; Bixby v. Casino Co., 14 Misc. 346. Hence, if the landlord's only possessory remedy is that which is given by the lease, the justice was right in his conclusion, and the landlord must be remitted to her action for ejectment. At the time the present lease was made the statute gave to a landlord, outside of any provision in the lease, the right to resume possession of the demised premises by summary proceedings either for nonpayment of rent, or for nonpayment of taxes, and it was held by this court in Fleishauer v. Bell, 44 Misc. 240, that summary proceedings for nonpayment of rent might be maintained notwithstanding that the lease provided for re-entry. The reason, of course, is that the two remedies may be concurrent, and that neither is exclusive of the other, as is distinctly recognized in section 2264 of the Code of Civil Procedure, which provides that a final order in summary proceedings shall not be a bar to an action of ejectment. Michaels v. Fishel, supra, contains nothing to the contrary. It decides merely that certain consequences follow upon the resumption of possession through an action of ejectment, which do not follow upon such resumption through summary proceedings, but nowhere in the opinion in that case can there be found expression or intimation that the reservation in a lease of the right to re-enter for nonpayment constitutes ejectment the exclusive remedy, and precludes resort to summary proceedings. If the right to re-enter for breach of the covenant to pay rent does not deprive the landlord of his right to resort to statutory summary proceedings for such nonpayment, the right to re-enter for breach of the covenant to pay taxes, etc., does not deprive the landlord of his right to resort to the statutory summary proceedings for such nonpayment, for that also is a right given him outside of and without reference to his lease. Bixby v. Casino Co., supra, is not to the contrary. There the lease provided that, for nonpayment of rent, the landlord might take such "summary or other proceeding for the recovery of said rent and the possession of the premises as may be permitted by law," and the court considered that having specially provided for summary proceedings for nonpayment of rent, the parties intended, under the principles expressed in the maxim expressio unius est exclusio alterius, that similar proceedings might not be maintained for nonpayment of taxes. Here there is no such distinction and no room for the application of the maxim. The terms of the lease as to the remedy for nonpayment of taxes are precisely the same as those relating to the remedy for the nonpayment of rent, and if the landlord still has the right to institute summary proceedings for the nonpayment of rent, she has the right to resort to the same remedy for the nonpayment of taxes.
It follows that the final order in each case must be reversed and new trial granted with costs to the appellant.
GIEGERICH and McCALL, JJ., concur.
Final order in each case reversed and new trial granted, with costs to appellant to abide event.