Opinion
December 29, 1952.
Present — Nolan, P.J., Carswell, Johnston, Wenzel and Schmidt, JJ.
In an action to recover damages for breach of a covenant of quiet enjoyment, judgment modified on the law by striking out the judgment for plaintiff in the sum of $10,300 and by providing, in lieu thereof, that the complaint be dismissed on the merits and by further providing for judgment for defendant, in accordance with the jury verdict in the sum of $3,750 on the counterclaim. As so modified the judgment is unanimously affirmed, with costs to the defendant. Findings of fact implicit in the verdict of the jury are affirmed. In accordance with the express language of the pertinent provision of the lease and the prevailing authority ( Meyer v. Schulte, 160 App. Div. 236, affd. 213 N.Y. 675; Baitzel v. Rhinelander, 179 App. Div. 735, 740-741) the plaintiff could not recover in this action unless as a condition precedent he proved performance on his part. It is undisputed, to the contrary, that he was delinquent in paying taxes and that the mortgage foreclosure was predicated, among other defaults, on his failure to pay such taxes although he was obliged to do so under the terms of the lease. There was no proof to support plaintiff's claim that the defendant waived his failure to pay taxes. It is merely to the effect that defendant's agent said "All right, go ahead" when plaintiff stated that he was trying to make tax payments. The proof warrants the inference, at most, that defendant agreed to refrain from pursuing the remedies afforded under the lease. Plaintiff's obligation with respect to taxes persisted and there was no proof of any waiver by defendant of performance by plaintiff which would entitle the latter to cast the indulgent defendant in damages.