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Opinion of the Court, per Werner, J.

[Vol. 196.

view was expressed in Judge VANN's dissenting opinion in the following language: "Owing to the previous relations between the parties the law implies a renewal of the obliga tions dependent on those relations, which measure every detail of the new contract." (P. 579.)

In the earlier case of Laughran v. Smith (75 N. Y. 205, 210) it was stated to be the settled rule that where a tenant enters under a lease for a year and holds over after the expiration of the term, "The law from the continuance of the possession, implies a contract on the part of the tenant to renew the tenancy for another year, on the terms of the original holding;" and to the same effect is Schuyler v. Smith (51 N. Y. 309).

The learned Appellate Division apparently based its decision upon three early cases. Two of these, Sherwood v. Phil lips (13 Wend. 479) and Webber v. Shearman (3 Hill, 547), were cases of distress for rent when that remedy was yet in force. But they have no application to the question at bar, because they simply hold that for the purpose of distraining for rent, the period of possession after the expiration of the term may be considered as an enlargement of the original demise. The third case cited in support of the decision of the Appellate Division (People ex rel. Chrome Steel Co. v. Paulding, 22 Hun, 91), was a proceeding to dispossess a tenant and appears to have been decided upon the authority of the two earlier cases referred to. It is evident, however, that in People ex rel. Chrome Steel Co. v. Paulding (supra) the late General Term gave too broad an application to the cases in Wendell and Hill, which were criticised and limited in Austin v. Strong (47 N. Y. 679) affirming the judgment below upon an opinion written by the elder Judge PECKHAM, on file, but not reported in full. In that case the tenant held over for several years after the expiration of the original lease. As a defense to an action for rent he claimed an eviction from part of the premises during one of the years of the original demise. The court held that an eviction in one year constituted no defense to an action for rent where there had been a renewal of the

N. Y. Rep.] Dissenting opinion per EDWARD T. BARTLETT, J.

lease from year to year by reason of the holding over of the tenant. When the case came before the late General Term (Opinion not reported. See Court of Appeals Cases, vol. 310) the court made the following observations: "The counsel for the defendants insist that where the tenant holds over for more than one year, the whole period of holding over shall be regarded as one term and cites as authority Sherwood v. Phillips (supra). For certain purposes that is the rule, for by counting backward it is viewed as one term and the mutual obligations of the parties not being changed during the entire time; for the purposes of pleading and distraining for rent, the landlord can regard it as one term. But it is in fact a new term at the beginning of each year, for at the end of each year either party without the assent of the other can terminate the relation existing between them."

Upon principle and authority we conclude that a tenancy from year to year, created by the tenant's holding over after the expiration of his original term, is a new term for each year of such holding over, upon the terms of the original lease so far as they are applicable to the new relation. It follows that a claim for unpaid rent of each year of such a holding over creates a separate and distinct cause of action. That such separate cause of action may be joined in one suit cannot be doubted, but it is equally clear that each may be made the subject of an independent action. The plaintiff might have grouped his several causes of action in a single suit, but he was not obliged to do so, and in bringing separate suits he was strictly within his rights.

The order of the Appellate Division should be reversed, and judgment of the Trial Term affirmed, with costs to the appellant in all courts.

EDWARD T. BARTLETT, J. (dissenting). The judgment. of the Trial Term was rendered in an action resulting from the consolidation of two actions. One was commenced February 8th, 1905, and the other December 5th, 1905. The first of these actions was brought to recover the rent accrued during

Dissenting opinion, per EDWARD T. BARTLETT, J. [Vol. 196. the first four months of the year 1899; the second was brought to recover the rents accruing during the remaining eight months of the year 1899.

As

On December 31st, 1891, the plaintiff's predecessor in title leased to Long Island City, which later became a part of the city of New York, certain premises therein, and the lessee covenanted to pay the rent monthly at the end of each month. The rental was fixed at five thousand dollars per annum. no specified term was mentioned in the lease as pleaded, it may be considered as a lease from year to year. The lessee held over during the years 1893 to 1898, both inclusive, and there is evidence that it held over for some part of the month of January, 1899, by reason of which the plaintiff claims that the defendant, as successor of the lessee, is liable for the rent during the entire year of 1899. The trial court directed a verdict for the plaintiff for the rent of the entire year of

1899.

On October 29th, 1904, the plaintiff commenced an action in which the amended complaint demanded rent for the months of August to December, 1898, both inclusive; the defendant offered judgment for an amount of money equal to four months' rent; the offer was accepted, and on February 21st, 1905, judgment was entered pursuant thereto, which was afterwards paid.

The two actions which resulted in the consolidated action. above referred to were commenced, one on February 8th, 1905, for the recovery of rent for the months of January to April, 1899, inclusive, and the other commenced December 5th, 1905, to recover rent for the months of May to December, 1899, inclusive.

The defendant's defense to the consolidated action is that, at the time the action was commenced in October, 1904, to recover rent from August to December, 1898, the rent sued for in the consolidated action was then due and should have been included therein.

A single and very simple question is presented by this appeal. The original lease of 1891 fixes the annual rental at

N. Y. Rep.] Dissenting opinion, per EDWARD T. BARTLETT, J.

five thousand dollars a year, payable monthly, and so far as is disclosed by the pleadings and the evidence no term was mentioned therein. It can, therefore, be treated as creating a tenancy from year to year.

It is undisputed that the original written lease is the only contract made between the parties, and their relations are to be determined by the legal effect of the lessee holding over during the years 1893 to 1899, both inclusive. The defendant lessee does not dispute the holding over during these years, but insists that the recovery of rent in a former action for the months of August to December, 1898, inclusive, and which judgment was paid, is a bar to the action which, as consolidated, seeks to recover the rent for the year 1899. The contention of the defendant is that the rent for the year 1899 being due and unpaid at the time the action to recover the rent for August to December, 1898, both inclusive, was instituted, the plaintiff should have included the 1899 rent therein.

This position of the defendant rests upon the familiar rule that a plaintiff is not permitted to split his cause of action, and if he does so, a recovery on a portion thereof will bar subsequent action for the balance. (Yates v. Fussett, 5 Denio, 21; Secor v. Sturgis, 16 N. Y. 548, 554; O'Beirne v. Lloyd, 43 N. Y. 248; Lorillard v. Clyde, 122 N. Y. 41; Seed v. Johnston, 63 App. Div. 340; Reformed Protestant Dutch Church of Westfield v. Brown, 54 Barb. 191, 199.)

In the case last cited the rule is well expressed: "In order to avoid multiplicity of actions, the law forbids that a cause of action shall be split up for the purpose of bringing several actions. But when several actions payable at different times arise out of the same contract or transaction, separate actions can be brought as each liability enures. Still, however, if no action is brought until more than one is due, all that are due must be included in one action; and if an action is brought when more than one is due, a recovery in the one first brought will be an effectual bar to a second action, brought to recover the other claims that were due when the first was

Dissenting opinion, per EDWARD T. BARTLETT, J. [Vol. 196.

brought." The law relating to the effect of splitting a cause of action is so familiar and well settled that further citation of authority is unnecessary.

We are thus brought to the single and important question whether the lessor has offended against this principle of law and can succeed in the consolidated action brought to recover the rent alleged to be due for the year 1899. As already pointed out, the original lease of 1891 created a tenancy from year to year.

In Webber v. Shearman (3 Hill, 547) it was held that holding over after the expiration of a lease for a year is a continuation of the former tenancy subject to the the same right of distress, and this whether the first demise be by deed or by parol. Judge COWEN, in the course of his opinion, stated (p. 550): "Holding over after the expiration of a sealed lease is a continuation of the same tenancy, and an enlargement of the same term."

In Sherwood v. Phillips (13 Wend. 479) it was held that, "Where a tenant enters under a demise for two years, and continues in the possession of the demised premises for the period of nine years, the landlord may, by one distress, distrain for the rent accrued during the whole time; and if the property be taken from his possession by writ of replevin, he may, in one avowry, acknowledge the taking for the whole nine years, as upon one entire lease."

This is certainly contrary to the contention that each year of a holding over must be considered as a new lease subject to the conditions of the old one.

In Haynes v. Aldrich (133 N. Y. 287) Judge FINCH states p. 289): "This court held in Commissioners of Pilots v. Clark (33 N. Y. 251), that the rule is too well settled to be disputed that where the tenant holds over after the expiration of his term the law will imply an agreement to hold for a year upon the terms of the prior lease; that the option to so regard it is with the landlord and not with the tenant, and that the latter holds over his term at his peril."

In Baylies v. Ingram (84 App. Div. 360, 362, 363) the

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