App. Div.]

Fourth Department, November, 1911.

All concurred, except WILLIAMS, J., who dissented, first, upon the ground that the order is appealable; second, upon the ground that, being appealable, the grand jury minutes having been used on the decision of the motion, and, as shown by the order, considered by the court and its decision based upon them, defendant is entitled to have those minutes included in the record on appeal to this court.

Motion to dismiss appeal granted.

MARTHA THAM, Appellant, v. SAMUEL S. CARROLL, Respondent. Fourth Department, November 15, 1911.

Landlord and tenant-covenant that land may be used for quarry purposes agreement that crops may be removed at expiration of term-forfeiture of right by tenant-failure to pay rent.

In the lease of a farm the lessee covenanted that third persons engaged in quarrying on the lands should be permitted to continue to do so and use land necessary for that purpose. The lease provided that wheat sowed during the term might be harvested after the expiration thereof. Held, that where the lessee voluntarily surrendered the premises before the expiration of the term, and refused to pay the rent due, he was not entitled to harvest the crop sown;

That by reason of his covenant the tenant could not claim an eviction by reason of the fact that the persons operating the quarry used thirty acres for that purpose, especially so when he continued in possession and paid rent after that number of acres had been used for quarrying; That, even if the lessee were justified in abandoning the premises and terminating the tenancy, he could not remove the crop sown by him without paying the rent which had actually accrued. KRUSE, J., dissented, with opinion.

APPEAL by the plaintiff, Martha Tham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 6th day of June, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the Erie Trial Term.

Charles Oishei, for the appellant.

George Clinton, Jr., for the respondent.

SPRING, J.:

Fourth Department, November, 1911.

[Vol. 147.

The plaintiff, the assignee of Anton Tham, the tenant of the defendant's farm in the town of Clarence, Erie county, has brought this action to recover damages for the conversion of a quantity of wheat and rye. Tham leased the farm of the defendant and entered into possession April 1, 1906, at a rental of $450 per year, payable semi-annually at the end of each six

months.

At the time the lease was made Carroll Brothers were operating a quarry, as the lessee knew, on a part of the leased premises, and its further development would inevitably interfere, to some extent, with the tilling of the farm, and that condition was provided for by covenants in the lease, as follows: "The lessee further covenants and agrees with the lessor that the firm of Carroll Brothers, their heirs and assigns, may have the free use of such portions of the farm as they may from time to time require for the purpose of carrying on their business of stone quarrying, stripping earth from stone to be quarried, piling earth that has been stripped from the land to be used for quarrying, and for any other purpose or use which may be necessary or incidental to their business. The said Carroll Brothers may have the free use of any space now occupied or to be occupied by railroad tracks now or which may hereafter be laid, and of any or all such space for the buildings now or which may hereafter be erected, moved or placed thereon, for the carrying on of their business or for the accommodation of their employees.

"The lessee further covenants and expressly agrees that in no event shall the said firm of Carroll Brothers, or either of them individually, their executors, administrators or assigns, be held liable to the lessee for any damage to crops, animals, machinery or persons by reason of blasting, or by or on account of any damage caused by any machinery, engine, boiler or apparatus used in their business, or for or on account of any act or omission of their agents, servants or employees causing damage to the lessee."

In 1906 Carroll Brothers constructed a railroad track over a part of these premises, and another in the early part of 1907, piled dirt on some of the land and made a driveway to the

App. Div.]

Fourth Department, November, 1911.

quarry. All these improvements were incidental and essential to the development of the quarry. Quite a tract of land, probably thirty acres or more, was rendered untenantable by these developments in connection with the excavation of the stone, and the plaintiff claims these acts were tantamount to an eviction from the leased premises.

We think the position untenable in view of the circumstances which appear in the record.

Three semi-annual payments of the rent were made by the lessee in accordance with the agreement, the last October 1, 1907. The railroad tracks were then laid, the land flooded and substantially all the acts committed which are now urged to sustain the claim of eviction. The lessee continued in possession of the premises in pursuance of the contract until April 1, 1908, when he abandoned them and without paying any part of the six months' rent then maturing. He complained to the defendant of the appropriation of the land and asked for a reduction in the rent of fifty dollars a year, and quit before the negotiations were concluded on this subject.

When the lessee went into possession of the farm there was a quantity of wheat growing thereon sowed by the preceding tenant and which he removed. By the terms of the lease the lessee was permitted to sow a like quantity of wheat to be harvested after the expiration of the term. The lessee sowed the wheat and rye and harvested the same in the summer of 1908, leaving the grain in the shock in the field, which he later attempted to thresh, but the defendant would not permit this until the rent accrued was paid. The defendant afterwards caused the grain to be stored in the barn on the premises. It is for the alleged conversion of this grain that the present action was commenced.

The only significance of the charge that the plaintiff's assignor was evicted from the leasehold property is to afford an excuse for re-entering the premises and threshing and removing the grain without paying the rent. The lease may be somewhat harsh to the lessee in its provisions in allowing Carroll Brothers to appropriate land in the carrying on of the quarry without any redress by the lessee for damage to his crops. We can only construe the agreement as it is, which he

Fourth Department, November, 1911.

[Vol. 147. seems to have entered into advisedly. All the substantial acts proven are within the explicit terms of the lease and there is no proof that any of them were committed wantonly or for any other purpose than the carrying on of the business of stone quarrying. The lease is also definite and precise in exonerating the defendant and Carroll Brothers for any of these acts whether committed by themselves or their agents.

The lessee voluntarily surrendered the premises, failing to pay the rent, and thereby lost his right to the away-going crop. (Gregg v. Boyd, 69 Hun, 588.)

His right to that crop depended upon his performance of the agreement. He could not abandon the premises, terminate the lease, refuse to pay the accrued rent and still be entitled to the grain. The objection that the defendant made to the removal of the grain was that the rent must first be paid. If the lessee's title survived the abandonment of the premises, it surely was not enforcible when he or his assignee declined to pay the rent for the time he actually occupied the farm.

Even if he was justified in abandoning the premises and terminating the tenancy, he was not absolved from paying the semi-annual installment which accrued before he left the farm for good. He could not re-enter and take away the growing grain until he had paid what was actually due. Even if the acts committed by Carroll Brothers were equivalent to an eviction, they did not relieve him from liability for rent accruing while he was in possession of the premises in pursuance of the lease. Failure to pay any installment of the rent when due by the provisions of the lease determined the term and avoided the contract.

The lessee remained in possession of the premises for a long period after the alleged invasion of the leasehold property. The rent was paid in October, 1907, which was subsequent to the important acts complained of. It is a serious question whether the payment of this rent money and the retention of the premises did not amount to a confirmation of the tenancy in spite of the acts of Carroll Brothers. The right to abandon must be exercised promptly. (Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109; Kent v. Ward, 111 N. Y. Supp. 743; Heilbrun v. Aaronson, 116 id. 1096.)

App. Div.]

Fourth Department, November, 1911.

Before the lessee abandoned the premises, he did not contend that Carroll Brothers in any way overstepped the provisions of the lease. The complaint was that the rent was too high, not that the taking of the land for the operation of the quarry was in violation of the lease or a transgression of his rights. Apparently that suggestion was of later origin and in order to aid him or his assignee in getting the value of the grain without paying the rent already due.

The judgment should be affirmed, with costs.

All concurred, except KRUSE, J., who dissented in an opinion.

KRUSE, J. (dissenting):

The question is over the ownership of thirty-two acres of wheat and five acres of rye. The action is in conversion and the trial court directed a nonsuit. The plaintiff appeals.

The plaintiff's assignor leased of defendant the farm upon which the grain was grown, but left it before the expiration of his lease and before the grain was matured and cut, and without paying the last half year's rent. After the lessee had left the farm the defendant lessor permitted him or his assignee to cut the grain and shock it, and thresh a part of it, but prevented him from threshing the remainder and took all the grain, claiming to own the same. The question is whether the lessee, by leaving the farm and not paying his rent, lost his crop of grain.

The farm consisted of three hundred and fourteen acres, but only one hundred and forty-five acres was workable land. When the lessee moved onto the farm the lessee testified that there was a little quarry on the farm and but one track; that thereafter the defendant made a second track, taking fifteen acres out of the middle of the farm; that he used ten acres for piling up refuse material; that he made a driveway forty rods long and five feet wide and, besides, another driveway twenty rods long and five feet wide; that he built five houses for the use of the employees in the quarry, and a barn; that the employees brought with them a horse and about fifty chickens; that the chickens ate up his corn and crops and the horse fed upon two acres of meadow; that defendant pumped water from the quarry and flooded the pastures, thirteen acres, and