Graves v. Berdan

26 N.Y. 498 (1863)



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 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.


The landlord constructed a new building on the site where the leased premises were destroyed. The new building was only one story high, and the tenant previously leased basement space and rooms on the ground and second stories of the former building. The new building remained vacant. A city court found in favor of the landlord, but the supreme court reversed. On appeal, the court affirmed, finding that the tenant had no interest in the land upon which the building stood because there was no stipulation in the lease regarding rebuilding in the event of fire or other casualty.


Does the tenant in this case have an interest in the land upon which the building stood?




According to common law, where the interest of the lessee in a part of the demised premises was destroyed by the act of God, so that it was incapable of any beneficial enjoyment, the rent might be apportioned. In Rolle's Abridgment, 236, it is said that if the sea break in and overflow a part of the demised premises, the rent shall be apportioned for though the soil remains to the tenant, yet as the sea is open to every one, he has no exclusive right to fish there. A distinction is taken between an overflow of the land by the sea, and fresh water, because, though the land be covered with fresh water, the right of taking the fish is vested exclusively in the lessee, and in that case the rent will not be apportioned. In the latter case the tenant has a beneficial enjoyment, to some extent, of the demised premises, but in the former he has none, and if the use be entirely destroyed and lost, it is reasonable that the rent should be abated, because the title to the rent is founded on the presumption that the tenant can enjoy the demised premises during the term.

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