Ejectment to recover leased premises on the ground that the lessee has broken certain conditions contained in the lease. Verdict for plaintiff, subject to the opinion of this court.

Van Ness, J., delivered the opinion of the court. - The stipulation in the concluding part of the lease, prohibiting the lessee from making alterations in the buildings, rests in covenant merely, and is not made a condition for the breach of which the estate is forfeited. Nor can the lessor of the plaintiff avoid the lease, because one of the buildings was underlet.

The condition in the lease is, that the lessor shall not "assign over, or otherwise part with, this indenture, or the premises thereby leased, or any part thereof, to any person," etc. These words must be construed to mean an assignment of the premises, or part of them, for the whole term; and no forfeiture is incurred by letting for a shorter period; under-leases not being considered as coming within the terms of the condition, or proviso. This principle was fully settled, in the case of Crusoe ex. dem. Blencowe v. Bugby, 3 Wils. 234, and has been repeatedly sanctioned since and applied to conditions expressed in stronger terms than in the present case. A lease may be so expressed as to produce a forfeiture for underletting, as well as for assinging the whole term; but this is not the language of the lease in question.

1 A lease made by a life tenant is subject to such implied limitation. In some states the devisee of a life interest may (by the will) be given power to make leases which shall extend beyond his own life. See N. Y. R. P. L., §§ 123, 135. - Ed.

The plaintiff equally fails in showing a right of re-entry, by reason that the defendant did not pay the United States, tax, because, the indispensably necessary step of making a demand of the defendant, within the period required by law, in order to create a forfeiture, was not taken.

It remains to be considered, whether the plaintiff is entitled to recover, on the ground that a forfeiture has been incurred by the nonpayment of the rent. This is a proceeding at common law, and the claim of the plaintiff being stricti juris, all the niceties required by the common law must be previously complied with, to entitle the revisioner to re-enter. There must be a demand of the rent due on the last day, a convenient time before sunset; and, if there be a house on the land, the demand must be made at the house of the tenant, if he is at home. Several other things are required to be done, which it is not necessary to detail for the purpose of deciding this case.1 Co. Litt. 201 b, 202 a; 1 Saund. 287 n 16 and the cases there cited. On the 1st and 20th of November, 1817, Reid, the agent of the lessor of the plaintiff, went to the house of the defendant, the lessee, in the afternoon, and demanded payment of the quarter's rent then due; but the defendant answered, "he could not pay." A similar demand was made by the agent, on the 1st and 20th of February, in the same year, of the quarter's rent then due, and the defendant promised to pay it, but did not. The question is, whether or not, under these circumstances, the right to re-enter accrued.2 I think it did not. The agent says he made the demand "in the afternoon;" now, this may have been immediately after 12 o'clock, and a demand at so early an hour would not be good. ''The last time of demand of the rent," says Lord Coke, "is such a convenient time before the sun-setting of the last day of payment, as the money may be numbered and received." And it is laid down by Hale, Ch. B., that the time of sunset is the time appointed by law to demand rents; Duppa v.Mayo, 1 Saund. 287, and though this is probably not literally correct, yet it serves to show that the demand necessary to be made, to create a forfeiture, must be immediately preceding sunset, so that the money may be counted, and the necessary receipt or acquittance given, while there is light enough reasonably to do so. This may appear to be unnecessarily rigorous, and a sacrifice of substance to form; but when it is considered that the consequence of a proceeding of this kind, is the forfeiture of the tenant's whole interest under the lease, every necessary form which the law has prescribed must be most scrupulously observed. "The court have always looked nearly into these conditions, covenants, or provisos." Crusoe v. Bugby, 3 Wils. 234. It was incumbent on the plaintiff to have shown during what part of the afternoon the demand was made, and that it was towards sunset, or late in the afternoon. The defendant, in a case of this description, had a right to remain passive, and to avail himself of any defect of proof on the other side, necessary to establish his right to recover. This point being decisive, the other objections to the plaintiff's right to recover need not be noticed. The defendant is entitled to judgment.

1 see Smith v. Whitbeck, 13 Oh. St. 471.- Ed. 2 A right of re-entry for non-payment of rent was reserved in the lease. - ED.

Judgment for the defendant.

d. The term may end (before the time fixed) by forfeiture, surrender, merger, or the exercise of the power of eminent domain.

JACKSON ex dem.

Weldon V. Harrison

Johnson (N. Y.), 66. - 1819.

[Reported herein at p. 731.]

Loughran V. Ross

45 New York, 792. - 1871.

[Reported herein at p. 325.]1

e. Effect of destruction of the premises in whole or part.

Graves V. Berdan

26 New York, 498. - 1863.

Rosekrans, J. - The opinion delivered by Justice Emott in this case, in the Supreme Court, is a correct exposition of the law applicable to it, and for the reasons stated therein, the judgment should be affirmed. The case of Stockwell v. Hunter, 11 Mete. 448, may be added to the authorities cited by Justice Emott to show that a lease of basement rooms or chambers, in a building of several stories in height, without any stipulation, by the lessor or lessee, for rebuilding, in case of fire or other casualties, gives the lessee no interest in the land upon which the building stands, and that if the whole building is destroyed by fire, the lessee's interest in the demised rooms is terminated, and the lessor may, after the destruction of the building, enter upon the soil and rebuild upon the ruins of the former edifice.