Appeal of Pittsb. & A. Drove Yard Co.

(a) A tenant, holding over after the term under a lease for five years “with leave of renewal for five years,” filed a bill in equity to restrain his landlord from proceeding to obtain possession and for a decree requiring the execution of a renewal lease: 1. There being an adequate remedy at law, in such case, equity will not entertain jurisdiction, and, even though the objection be not raised, this court, to prevent the use of the case as a precedent, will dismiss the bill without prejudice to the right of the tenant to defend at law.

FROM THE DECREE OF THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 155 October Term 1888, Sup. Ct.; court below, No. 607 March Term 1888, C. P. No. 1. On February 25, 1888, the Pittsburgh & Allegheny Drove Yard Co. filed a bill in equity against Robert Woodside, and Daniel Taylor, and others, executors of‘William Woodside, deceased. The bill averred that the plaintiff was a corporation, etc.; that on April 1,1882, Robert Woodside and William Woodside, being the owners of certain real estate, leased the same for five years from said date, “ with leave of renewal for five years,” to Omslaer & Walker, who entered and continued in possession, and on October 6,1884, assigned the lease to the plaintiff, “with all the rights and privileges therein granted;” that plaintiff, as assignee of said lease, had at all times faithfully performed the covenants therein, and, intending a renewal of said lease for another term of five years from and after April 1,1887, had continued thereafter to occupy the premises; that not until on or about July 1, 1887, when plaintiff tendered the quarterly rent then payable, did the plaintiff receive any notice that the lessors desired to repossess themselves of the demised premises, and plaintiff then formally notified the defendants in writing of its intention to renew said lease for a further term of five years ; that the defendants threatened to eject the plaintiff, and refused to renew said lease. The prayers of the bill were, (1) that the defendants be enjoined from' ejecting the plaintiffs, and, (2) that they be ordered and decreed to renew the lease for another term of five years. The answer of defendants, filed on May 11, 1888, in so far as the averments of the bill were not denied, set forth that no notice was given by the plaintiff until July 11, 1887, that it intended to avail itself of the leave of renewal; that the defendants, previously, on June 30, 1887, had given notice to the lessees to quit possession of the premises within three months. The cause was set down for hearing on bill answer, on June 27, 1888, the court, Stowe, P. J., without opinion filed, signed a decree dismissing the bill at the costs of the plaintiff. Thereupon the plaintiff took this appeal cree as error. [Upon the question whether the law devolved upon the tenant the duty of making his election to renew within the first five years, or whether his continuance in possession was a sufficient notice of his choice to take the additional term, the counsel cited: Commonwealth v. McNeile, 8 Phila. 439 ; Clark v. Merrill, 51 N. H. 415; Kelso v. Kelly, 1 Daly 424; Delasham v. Berry, 20 Mich. 292 ; Kramer v. Cook, 7 Gray 550 ; Holley v. Young', 68 Me. 215 (28 Amer. 11. 40); Creighton v. McKee, 7 Phila. 324 ; s. c. 2 Brewst. 383 ; Lang v. Stafford, 103 N. Y. 274 ,• Yettor’s App., 99 Pa. 52 ; Terstegge v. German Soc., 92 Ind. 82 (47 Amer. R. 135) ; Montgomery v. Board of Com., 76 Ind. 362 (40 Amer. R. 250); Banks v. Tlaskie, 45 Md. 207; Goodright v. Richardson, 3 Term R. 462 ; Ferguson v. Cornish, 2 Burr. 1032. The question of jurisdiction was not noticed.] [Counsel cited, in his reply to the questions raised: Laguerenne v. Dougherty, 35 Pa. 45; 2 Lead. Cas. Amer. Law of R. P., Sharswood & Budd, 194.]