Opinion
December, 1895.
Arthur Furber, for appellant.
Robt. E. Deyo, for respondent.
The authorities adduced by the learned counsel for the appellant, to which may be added Craig v. Butler, 83 Hun, 286, are conclusive of the proposition that the entire rent for the month of August was due on the first day of the month. Hence, aside from any provision in the lease qualifying the legal rights of the parties, the termination of the tenancy on the twelfth of August would be no answer to an action for all the rent of the month. But the parties have expressly stipulated that when, on the occurrence of a fire, the landlord elects to end the term, the " accrued rent shall be paid up to the time of the fire." The landlord knew that the entire rent for August would accrue and be due on the first day of the month; what, then, did he mean by the provision that accrued rent should be paid up to the time of the fire? He could intend but one thing, namely, that although all the rent for August accrued on the first day of the month, yet the tenant should pay rent only to the twelfth, the time of the fire. Upon any other construction the words "up to the time of the fire" would be utterly without operation and effect. Of course, it was competent for the parties, by express covenant, to apportion the rent ( Zule v. Zule, 24 Wend. 76; Church v. Seeley, 110 N.Y. 457), and this they have done by terms of which the meaning is unmistakable.
We are content, without further argument, to affirm the judgment on the opinion of CONLAN, J., in the court below.
Judgment affirmed, with costs.
DALY, Ch. J., and BISCHOFF, J., concur.
Judgment affirmed, with costs.